# SHALINI SHYAM SHETIY AND ANOTHER v. RAJENDRA SHANKAR PATIL

- **Citation:** [2010] 8 S.C.R. 836
- **Court:** Supreme Court of India
- **Decided:** 2010-07-23
- **Case number:** Civil Appeal No. 5896 of 2010
- **Bench:** G.S. Singhvi, Asok Kumar Ganguly
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/shalini-shyam-shetiy-and-another-v-rajendra-shankar-patil-27079
- **Pages:** 43

## Headnote

Constitution of India, 1950:
Articles 226, 227 and 32 - Dispute between landlord and
tenant- Writ petition by tenant challenging the decree passed
by trial court and affirmed by first appellate court - Dismissed
by High Court -
On appeal, held: High Court erred in
entertaining the writ petition - In cases of property rights and
0 in disputes between private individuals writ court should not
interfere unless there is any infraction of statute or it can be
shown, that private individual is acting in collusion with a
statutory authority - Writ petition was filed in a pure dispute
between landlord and tenant amongst private parties and the
only respondent is plaintiff landlord - Petition filed under
E Article 227 cannot be called a writ petition - Writs can be
issued by High Courts only under Article 226 and by the
Supreme Court only under Article 32 - No writ petition can
be moved under Article 227 nor can a writ be issued under
Article 227 - Bombay High Court (Appellate Side) Rules,
F 1960.
Articles 226 and 227 - Jurisdiction under Articles 226
and 227 - Distinction between - Explained.
Article 227 - Power of superintendence over all courts
G and tribunals by the High Court - Exercise of - Principles
formulated.
Article 226 - Writ - Issuance of - Held: Writ petition is a·
remedy in public law - High Court can issue writ to any
H
836
SHALINI SHYAM SHETTY AND ANR. v. RAJENDRA
837
SHANKAR PATIL
person, but person against whom writ will be issued must have
A
some statutory or public duty to perform - Main respondent
should be either Government, Governmental agencies or a
State or instrumentalities of a State within the meaning of
Article 12 - Private individuals cannot be equated with State
or instrumentalities of State - All respondents in a writ petition
B
cannot be private parties - But private parties acting in
collusion with State can be respondents in a writ petition.
The respondent-landlord filed a suit for eviction on
various grounds against the appellant-tenants. The trial
C
court decreed the suit in favour of the respondent. The
first appellate court upheld the order of the trial court. The
tenants then filed a writ petition before the High Court
and prayed for a writ of certiorari. The High Court
dismissed the writ petition. Therefore, the tenants filed the
instant appeal.
D
Dismissing the appeal, the Court
HELD: 1.1 In cases of property rights and in disputes
between private individuals writ court should not
interfere unless there is any infraction of statute or it can
E
be shown, that a private individual is acting in collusion
with a statutory authority. A private person becomes
amenable to writ jurisdiction only if he is. connected with
~ statutory authority or only if he/she discharges any
official duty. In the instant case, none of the said features
F
are present. Even then a writ petition was filed in a pure
dispute between landlord and tenant amongst private
parties and the only respondent is the plaintiff landlord.
Therefore, the High Court erred in entertaining the writ
petition. The course adopted by the High Court cannot G
be approved. Certainly, the High Court's order of noninterference in view of concurrent findings of facts is
unexceptionable. [Paras 72, 73, 79 and 83] [877-G-H; 876B-D; 878-G]
·;
H
838
SUPREME COURT REPORTS
[2010] 8 S.C.R.
A
1.2 A writ petition is a remedy in public law which
may be filed by any person but the main respondent
should be either Government, Governmental agencies or
a State or instrumentalities of a State within the meaning
of Article 12. Private individuals cannot be equated with
B State or instrumentalities of the State. All the respondents
in a writ petition cannot be private parties. But private
parties acting in collusion with State can be respondents
in a writ petition. Under the phraseology of Article 226,
High Court can issue writ to ~ny person, but the person
c against whom writ will be issued must have some
statutory or public duty to perform. It is only a writ of
Ha

## Text

_Characters 0–39,891 of 78,838. This is a partial read: ask again with offset=39891 for what follows._

A
B
c
[2010] 8 S.C.R. 836
SHALINI SHYAM SHETIY AND ANOTHER
v.
RAJENDRA SHANKAR PATIL
(Civil Appeal No. 5896 of 2010)
JULY 23, 2010
[G.S. SINGHVI AND ASOK KUMAR GANGULY, JJ.]
Constitution of India, 1950:
Articles 226, 227 and 32 - Dispute between landlord and
tenant- Writ petition by tenant challenging the decree passed
by trial court and affirmed by first appellate court - Dismissed
by High Court -
On appeal, held: High Court erred in
entertaining the writ petition - In cases of property rights and
0 in disputes between private individuals writ court should not
interfere unless there is any infraction of statute or it can be
shown, that private individual is acting in collusion with a
statutory authority - Writ petition was filed in a pure dispute
between landlord and tenant amongst private parties and the
only respondent is plaintiff landlord - Petition filed under
E Article 227 cannot be called a writ petition - Writs can be
issued by High Courts only under Article 226 and by the
Supreme Court only under Article 32 - No writ petition can
be moved under Article 227 nor can a writ be issued under
Article 227 - Bombay High Court (Appellate Side) Rules,
F 1960.
Articles 226 and 227 - Jurisdiction under Articles 226
and 227 - Distinction between - Explained.
Article 227 - Power of superintendence over all courts
G and tribunals by the High Court - Exercise of - Principles
formulated.
Article 226 - Writ - Issuance of - Held: Writ petition is a·
remedy in public law - High Court can issue writ to any
H
836
SHALINI SHYAM SHETTY AND ANR. v. RAJENDRA
837
SHANKAR PATIL
person, but person against whom writ will be issued must have
A
some statutory or public duty to perform - Main respondent
should be either Government, Governmental agencies or a
State or instrumentalities of a State within the meaning of
Article 12 - Private individuals cannot be equated with State
or instrumentalities of State - All respondents in a writ petition
B
cannot be private parties - But private parties acting in
collusion with State can be respondents in a writ petition.
The respondent-landlord filed a suit for eviction on
various grounds against the appellant-tenants. The trial
C
court decreed the suit in favour of the respondent. The
first appellate court upheld the order of the trial court. The
tenants then filed a writ petition before the High Court
and prayed for a writ of certiorari. The High Court
dismissed the writ petition. Therefore, the tenants filed the
instant appeal.
D
Dismissing the appeal, the Court
HELD: 1.1 In cases of property rights and in disputes
between private individuals writ court should not
interfere unless there is any infraction of statute or it can
E
be shown, that a private individual is acting in collusion
with a statutory authority. A private person becomes
amenable to writ jurisdiction only if he is. connected with
~ statutory authority or only if he/she discharges any
official duty. In the instant case, none of the said features
F
are present. Even then a writ petition was filed in a pure
dispute between landlord and tenant amongst private
parties and the only respondent is the plaintiff landlord.
Therefore, the High Court erred in entertaining the writ
petition. The course adopted by the High Court cannot G
be approved. Certainly, the High Court's order of noninterference in view of concurrent findings of facts is
unexceptionable. [Paras 72, 73, 79 and 83] [877-G-H; 876B-D; 878-G]
·;
H
838
SUPREME COURT REPORTS
[2010] 8 S.C.R.
A
1.2 A writ petition is a remedy in public law which
may be filed by any person but the main respondent
should be either Government, Governmental agencies or
a State or instrumentalities of a State within the meaning
of Article 12. Private individuals cannot be equated with
B State or instrumentalities of the State. All the respondents
in a writ petition cannot be private parties. But private
parties acting in collusion with State can be respondents
in a writ petition. Under the phraseology of Article 226,
High Court can issue writ to ~ny person, but the person
c against whom writ will be issued must have some
statutory or public duty to perform. It is only a writ of
Habeas Corpus which can be directed not only against
the State but also against private person. The writ of
Habeas Corpus is issued not only for release from
0 detention by the State but also for release from private
detention. [Paras 64 and 70] [873-F-G; 875-F]
Sohan Lal vs. Union of India and Anr. AIR 1957 SC 529
- followed.
E
Engineering Mazdoor Sabha and Anr. vs. Hind Cycles
Ltd. AIR 1963 SC 874; Rohtas Industries Ltd. and Anr. vs.
Rohtas Industries Staff Union and Ors. (1976) 2 SCC 82 -
referred to.
1.3 A proceeding under Article 226 is not the
F appropriate forum for adjudication of property disputes
or disputes relating to title. [Paras 74 and 75] [876-D-F]
Mohammed Hanif vs. The State of Assam 1969 (2) SCC
782; T.C. Basappa vs. T. Nagappa and Anr. AIR 1954 SC
G 440; Mis. Hindustan Steel Limited, Rourke/a vs. Smt. Ka/yani
Banerjee and Ors. (1973) 1 SCC 273; State of Rajasthan vs.
Bhawani Singh and Ors. 1993 Supp. (1) SCC 306 Mohan
Pandey and Anr. vs. Usha Rani Rajgaria and Ors. (1992) 4
SCC 61 Prasanna Kumar Roy Karmakar vs. State of WB and
H Ors. (1996) 3 SCC 403; P.R. Murlidharan and Ors. vs. Swami
SHALINI SHYAM SHETTY AND ANR. v. RAJENDRA
839
SHANKAR PATIL
Dharmananda Theertha Padar and Ors. (2006) 4 SCC 501
A
- referred to.
2.1 The submission that petitions under Article 227
of the Constitution are filed against orders of civil court
and even in disputes between landlord and tenant, under
8
the Bombay High Court (Appellate Side) Rules, 1960,
such petitions are called writ petitions, cannot be
accepted. It does not appear from the Bombay High
Court Rules that petitions under Article 227 are called writ
petitions. It is provided under the said Rules that petitions
under Article 227 filed in respect of certain category of C
cases would be heard by a Division Bench hearing writ
petitions. That is merely indicative of the forum where
such petitions will be heard. Chapter XVII of the Rules
deals with the petitions under Articles 226 and 227 and
applications under Article 228 and rules for issue of writs
D
and orders under those Articles. [Paras 16, 21, 22 and 23)
[852-D; 853-E-H]
2.2 The petitions under Article 226 and those under
Article 227 are treated differently. To a proceeding under
E
Article 227 of the Constitution of India only the appellate
side Rules of the High Court apply. But to a proceeding
under Article 226, either the original side or the appellate
side Rules, depending on the situs of the cause of action,
would apply. Therefore, High Court Rules treat the two
proceedings differently in as much as a proceeding
under Article 226, being an original proceeding, can be
governed under Original Side Rules of the High Court,
depending on the situs of the cause of action. A
proceeding under Article 227 is never an original
G
proceeding and can never be governed under Original
Side Rules of the High Court. Apart from that, writ
proceeding by its very nature is a different species of
proceeding. [Paras 24, 27, 28 and 29) [854-B; 857-H; 858A-C]
F
H
840
SUPREME COURT REPORTS
[2010] 8 S.C.R.
A
Jhaman Karamsingh Dadlani vs. Raman/al Manek/a/
Kantawala AIR 1975 Bombay 182 - referred to.
3.1 Before the coming of the Constitution on 26th
January, 1950, no Court in India except three High Courts
of Calcutta, Bombay and Madras could issue the writs,
8 that too within their original jurisdiction. Prior to Article
226 of the Constitution, under Section 45 of the Specific
Relief Act, the power to issue an order in the nature of
mandamus was there. The power to issue writs
underwent a sea-change with the coming of the
C Constitution from 26th January, 1950. Now writs can be
issued by High Courts only under Article 226 of the
Constitution and by the Supreme Court only under Article
32 of the Constitution. No writ petition can be moved
under Article 227 of the Constitution nor can a writ be
D issued under Article 227 of the Constitution. Therefore,
a petition filed under Article 227 of the Constitution
cannot be called a writ petition. This is clearly the
Constitutional position. No Rule of any High Court can
amend or alter this clear Constitutional scheme. In fact
E the Rules of Bombay High Court have not done that and
proceedings under Articles 226 and 227 have been
separately dealt with under the said Rules. [Paras 30, 31
and 32] [858-0-H; 859-A-C]
F
Law of Writs by V. G. Ramchandran, Eastern Book
Company Volume 1 - referred to.
3.2 Articles 226 and 227 stand on substantially
different footing. Prior to the Constitution, the Chartered
High Courts as also the Judicial Committee of the Privy
G Council could issue prerogative writs in exercise of their
original jurisdiction. However, after the Constitution every
High Court has been conferred with the power to issue
writs under Article 226 and these are original proceeding.
The jurisdiction under Article 227 on the other hand is not
H original nor is it appellate. This jurisdiction of
SHALINI SHYAM SHETTY AND ANR. v. RAJENDRA 841
SHANKAR PATIL
superintendence under Article 227 is for both
A
administrative and judicial superintendence. Therefore,
the powers conferred under Articles 226 and 227 are
separate and distinct and operate in different fields. Under
Article 226, the High Court normally annuls or quashes
an order or proceeding but in exercise of its jurisdiction
B
under Article 227, the High Court, apart from annulling the
proceeding, can also substitute the impugned order by
the order which the inferior tribunal should have made.
[Paras 57, 58, 59 and 60] [868-F-H; 869-A-C]
Jahnabi Prasad Banerjee and Anr. vs. Basudeb Paul C
and Ors. AIR 1950 Calcutta 536; Sukhdeo Baiswar vs. Brij
Bhushan Misra and Ors. AIR 1951 Allahabad 667; Dalmia
Jain Airways Limited vs. Sukumar Mukherjee AIR 1951
Calcutta 193; Manmatha Nath Biswas vs. Emperor AIR 1933
Calcutta 132; Jodhey and Ors. vs. State through Ram Sahai
D
AIR 1952 Allahabad 788; Nagendra Nath Bora and Anr. vs.
Commissioner of Hills Division and Appeals, Assam and Ors.
AIR 1958 SC 398; State of Gujarat etc. vs. Vakhatsinghji
Vajesinghji Vaghela (dead) Thr LRs and Ors. AIR 1968 SC
1481; Mani Nariman Daruwala @ Bharucha (deceased)
E
through Lrs. and Ors. vs. Phiroz N. Bhatena and Ors,
etc. (1991) 3 SCC 141; Chandavarkar Sita Ratna Rao vs.
Ashalata S. Guram (1986) 4 SCC 447; Laxmikant Revchand
Bhojwani and Anr. vs. Pratapsingh Mohansingh Pardeshi
(1995) 6 SCC 576; Sarpanch, Lonand Grampanchayat vs.
F
Ramgiri Gosavi and Anr. AIR 1968 SC 222; Jijabai Vithalrao
Gajre vs. Pathankhan and Ors. (1970) 2 SCC 717;
Ahmedabad Manufacturing and Calico Ptg. Co. Ltd. vs. Ram
Tahel Ramnand and Ors. (1972) 1 SCC 898; Surya Dev Rai
vs. Ram Chander Rai and Ors. (2003) 6 SCC 675; Radhey G
Shyam and Anr. vs. Chhabi Nath and Ors. (2009) 5 SCC 616
- referred to.
State of UP. and Ors. vs. Dr. Vijay Anand Mahraraj AIR
1963 SC 946; Surya Dev Rai vs. Ram Chander Rai and Ors.
(2003) 6 SCC 675; Hari Vishnu Karnath vs. Ahmad /shaque
H
842
SUPREME COURT REPORTS
[201 O] 8 S.C.R.
A and Ors. AIR 1955 SC 233 - relied to.
3.3 Jurisdiction under Article 226 normally is
.exercised where a party is affected but power under
Article 227 can be exercised by the High Court suo motu
8 as a custodian of justice. In fact, the power under Article
226 is exercised in favour of persons or citizens for
vindication of their fundamental rights or other statutory
rights. Jurisdiction under Article 227 is exercised by the
High Court for vindication of its position as the highest
judicial authority in the State. In certain cases where there
C is infringement of fundamental right, the relief under
Article 226 can be claimed ex-debito justicia or as a matter
of right. But in cases where the High Court exercises its
jurisdiction under Article 227, such exercise is entirely
discretionary and no person can claim it as a matter of
D right. From an order of a Single Judge passed under
Article 226, a Letters Patent Appeal or an intra Court
Appeal is maintainable. But no such appeal is
maintainable from an order passed by a Single Judge of
a High Court in exercise of power under Article 227. In
E almost all High Courts, Rules have been framed for
regulating the exercise of jurisdiction under Article 226.
No such Rule appears to have been framed for exercise
of High Court's power under Article 227 possibly to keep
such exercise entirely in the domain of the discretion of
F High Court. [Para 61] [869-0-H]
G
H
3.4 The principles on the exercise of High Court's
jurisdiction under Article 227 of the Constitution may be
formulated:
(a) A petition under Article 226 of the Constitution is
different from a petition under Article 227. The mode of
exercise of power by High Court under these two Articles
is also different.
(b) In any event, a petition under Article 227 cannot
SHALINI SHYAM SHETTY AND ANR. v. RAJENDRA
843
SHANKAR PATIL
be called a writ petition. The history of the conferment of A
writ jurisdiction on High Courts is substantially different
from the history of conferment of the power of
Superintendence on the High Courts under Article 227.
(c) High Courts cannot, ordinarily, in exercise of its
power of superintendence under Article 227 of the
Constitution, interfere with the orders of tribunals or
courts inferior to it. Nor can it, in exercise of this power,
B
act as a court of appeal over the orders of court or tribunal
subordinate to it. In cases where an alternative statutory
mode of redressal has been provided, that would also
C
operate as a restrain on the exercise of this power by the
High Court.
(d) The parameters of interference by High Courts in
exercise of its power of superintendence have been o
repeatedly laid down by this Court. In this regard the High
Court must be guided by the principles laid down by the
Constitution Bench of this Court in Watyam Singh's case
which have been repeatedly followed by subsequent
Constitution Benches and various other decisions of this
E
court.
(e) According to the ratio in Watyam Singh's case, the
High Court in ·exercise of its jurisdiction of
superintendence can interfere in order only to keep the
tribunals and courts subordinate to it, 'within the bounds
F
of their authority'.
(f) In order to ensure that law is followed by such
tribunals and courts by exercising jurisdiction which is
vested in them and by not declining to exercise the
G
jurisdiction which is vested in them.
(g) The High Court can interfere in exercise of its
power of superintendence when there has been a patent
perversity in the orders of tribunals and Courts
H·
844
SUPREME COURT REPORTS
[2010] 8 S.C.R.
A subordinate to it or where there has been a gross and
manifest failure of justice or the basic principles of natural
justice have been flouted.
(h) In exercise of its power of superintendence, the
8 High Court cannot interfere to correct mere errors of law
or fact or just because another view than the one taken
by the tribunals or courts subordinate to it, is a possible
view. In other words the jurisdiction has to be very
sparingly exercised.
C
(i) High Court's power of superintendence under
D
Article 227 cannot be curtailed by any statute. It has been
declared a part of the basic structure of the Constitution
and therefore abridgement by a Constitutional
amendment is also very doubtful.
(j) It may be true that a statutory amendment of a
rather cognate provision, like section 115 of the Civil
Procedure Code by the Civil Procedure Code
(Amendment) Act, 1999 does not and cannot cut down
the ambit of High Court's power under Article 227. At the
E same time, it must be remembered that such statutory
amendment does not correspondingly expand the High
Court's jurisdiction of superintendence under Article 227.
(k) The power is discretionary and has to be
F exercised on equitable principle. In an appropriate case,
the power can be exercised suo motu.
(I) On a proper appreciation of the wide and
unfettered power of the High Court. under Article 227, it
transpires that the main object of this Article is to keep
G strict administrative and judicial control by the High Court
on the administration of justice within its territory.
(m)
The
object of superintendence,
both
administrative and judicial, is to maintain efficiency,
H smooth and orderly functioning of the entire machinery
SHALINI SHYAM SHETTY AND ANR. v. RAJENDRA 845
SHANKAR PATIL
of justice in such a way as it does not bring it into any
A
disrepute. The power of interference under this Article is
to be kept to the minimum to ensure that the wheel of
justice does not come to a halt and the fountain of justice
remains pure and unpolluted in order to maintain public
confidence in the functioning of the tribunals and courts
B
subordinate to High Court.
(n) This reserve and exceptional power of judicial
intervention is not to be exercise.d just for grant of relief
in individual cases but should be directed for promotion
of public confidence in the administration of justice in the
C.
larger public interest whereas Article 226 is meant for
protection of individual grievance. Therefore, the power
.under Article 227 may be unfettered but its exercise is
subject to high degree of judicial discipline.
(o) An improper and a frequent exercise of this power
will be counter-productive and will divest this
· extraordinary power of its strength and vitality. [Para 62]
[870-A-H; 871-A-H; 872-A-H; 873-A-D]
Waryam Singh and Anr. vs. Amarnath and Anr. AIR 1954
SC 215; L. Chandra Kumar vs. Union of India and Ors.
(1997) 3 sec 261 - followed.
4.1 It is discerned that of late there is a growing trend
amongst several High Courts to entertain writ petition in
cases of pure property disputes. Disputes relating to
partition suits, matters relating to execution of a decree,
in cases of dispute between landlord and tenant and also
D
E
F
in a case of money decree and in various other cases
where disputed questions of property are involved, writ
G
courts are entertaining such disputes. In some cases
High Courts, in a routine manner, entertain petition under
Article 227 over such disputes and such petitions are
treated as writ petitions. Even if the scope of s. 115 CPC
is curtailed that has not resulted in expanding High
H
846
SUPREME COURT REPORTS
[2010] 8 S.C.R.
A Court's power of superintendence. In exercising its
jurisdiction, the High Court must follow the regime of law.
[Paras 78 and 80) [877-E-H; 878-A-C)
4.2 As a result of frequent interference by the High
8 Court either under Article 226 or 227 with pending civil
and at times criminal cases, the disposal of cases by the
civil and criminal courts gets further impeded and thus
causing serious problems in the administration of justice.
This Court hopes and trusts that in exercising its power
either under Article 226 or 227, the High Court will follow
C the time honoured principles. Those principles have been
formulated by this Court for ends of justice and the High
Courts as the highest Courts of justice within their
jurisdiction will adhere to them strictly. [Paras 81 and 82)
[878-D-E]
D
E
F
G
H
Case Law Reference:
AIR 1975 Bombay 182
Referred to.
AIR 1950 Calcutta 536
Referred to.
AIR 1951 Allahabad 667 Referred to.
AIR 1951 Calcutta 193
Referred to.
AIR 1933 Calcutta 132
Referred to.
AIR 1952 Allahabad 788 Referred to.
AIR 1958 SC 398
AIR 1968 SC 1481
(1991) 3 sec 141
(1986) 4 sec 447
(1995) 6 sec 576
AIR 1968 SC 222
Referred to.
Referred to.
Referred to.
Referred to.
Referred to.
Referred to.
Para 25
Para 38
Para 38
Para 40
Para 43
Para 44
Para 46
Para 48
Para 50
Para 51
Para 52
Para 53
SHAUN! SHYAM SHETTY AND ANR. v. RAJENDRA
847
SHANKAR PATIL
(1970) 2 sec 111
Referred to.
Para 53
A
(1972) 1 sec 898
Referred to.
Para 53
(2009) 5 sec 616
Referred to.
Para 54
AIR 1963 SC 946
Relied on.
Para 58
B
AIR 1955 SC 233
Relied on.
Para 60
(2003) 6 sec 675
Relied on.
Para 60
AIR 1954 SC 215
Followed.
Para 62
(1997) 3 sec 261
Followed.
Para 62
c
AIR 1957 SC 529
Followed.
Para 68
AIR 1963 SC 874
Referred to.
Para 69
(1976) 2 sec a2
Referred to.
Para 71
D
1969 (2) sec 782
Referred to.
Para 74
AIR 1954 SC 440
Referred to.
Para 75
(1973) 1 sec 213
Referred to.
Para 76
E
1993 Supp. (1) sec 306 Referred to.
Para 76
(1992) 4 sec 61
Referred to.
Para 76
(2006) 4 sec 501
Referred to.
Para 76
F
(1996) 3 sec 403
Referred to.
Para 77
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
5896 of 2010.
From the Judgment and Order dated 09.02.2009 of the
G
High Court of Judicature at Bombay in WP No. 7926 of 2008.
Jitendra Mohan Sharma, Sandeep Singh and Sandeep
Malik for the appellants.
H
848
SUPREME COURT REPORTS
[2010] 8 S.C.R.
A
Shivaji M. Jhadav for the Respondent.
The Judgment of the Court was delivered by
GANGULY, J. 1. Leave granted.
B
2. This appeal has been filed by the original defendant
challenging the judgment and order dated 09.02.2009 of the
Bombay High Court rendered in the Writ Petition filed under
Article 226 of the Constitution of India. The High Court
dismissed the writ petition in view of concurrent finding of two
C lower courts and High Court thought that no interference in
exercise of its writ jurisdiction is warranted.
3. The facts of the case are that the respondent/plaintiff
filed a suit for eviction on the grounds of breach of terms of
tenancy, damage to the property as well as causing nuisance
D and annoyance to the plaintiff and the other occupants. As per
the plaintiff the original defendant was the tenant in respect of
Room No.3 (hereinafter as suit premises) and was paying
monthly rent of Rs.20/- including the water charges and
excluding the electricity charges. The case of the plaintiff is that
E only the suit premises was let out though the original tenant was
allowed to use a covered space of 10'x 4', but the same was
for common usage and for access to W.C and water tap along
with the other tenants.
4. Plaintiff claims that somewhere in January 2000, the
F defendant had requested the plaintiff to give keys of the two
doors to clean the 'Sherry' portion. But the said keys were not
returned even after 2-3 days and the plaintiff became suspicious
and requested the defendant for returning the keys, but in vain.
Suspecting some foul play, the plaintiff entered the 'sherry' to
G find that the defendant had placed his items over there and
removed the drainage cover which was there in the Sherry. A
police complaint was made with regard to the unauthorized
possession but nothing happened. The plaintiff then requested
H
SHALINI SHYAM SHETTY AND ANR. v. RAJENDRA 849
SHANKAR PATIL [ASOK KUMAR GANGULY, J.]
the defendant to remove those articles but the request of the
A
plaintiff was not heeded.
5. The defendant/appellant's father is said to have filed a
suit for relief of declaration as tenant in the premises and to
further restrain the landlord from interfering in the tenanted
8
premises. In the said suit injunction was granted. Thereafter,
the plaintiff had demolished a wall that was there in the Sherry
and put up a new door.
6. The original defendant expired during the pendency of
the suit and his LRs were brought on record and they, in their
C
written statement, admitted the relationship between the
parties, but they denied all the allegations against them. They
made a claim that the space measuring about 1 O'x4' abutting
the entrance door of suit premises was in their exclusive use.
As regards the suit filed by the appellant's father it was
D
submitted that the same was settled outside the court with the
understanding that the defendant would withdraw his suit,
whereas the plaintiff will withdraw his suit simultaneously. An
affidavit dated 16.03.01 was filed to that effect.
7. The learned Court of.Small Causes at Mumbai, Sandra
E
Branch, vide its judgment dated 30.10.07 decreed the suit of
the plaintiff/respondent and directed the defendants to hand
over the vacant and peaceful possession of the suit premises
to the plaintiff within a period of four months from the date of
the order. It was held that at the time of filing of the present suit,
F
as per evidence on record, the defendants were in unlawful
occupation of the sherry portion of the suit property, which was
admittedly not let out. As regards the settlement outside court
it was held that the affidavit, Exhibit 'E', relied on by the
defendants merely speaks of withdrawal of the suit of G
defendants and settlement of dispute. There is no mention
about the present suit being settled. It was noted that admittedly
the plaintiff has no documentary evidence to prove that the
defendants had encroached and occupied the sherry portion
of the suit property. But it was observed that there is
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[2010] 8 S.C.R.
A corroborative evidence in this behalf in the form of NC Slip
Exhibit 'G' which shows that the complaint was filed
immediately after the plaintiff learnt about this unlawful
possession. Reliance was also placed on paragraph 10 of the
examination-in-chief of the D.W.1 which supports the plaintiffs
B version.
8. It was held that the defendants admit that at some point
prior to the filing of the present suit the 'sherry portion' was in
the occupation of the deceased defendant. This has to be read
C in the light of the fact that the aforesaid portion was never let
out to the deceased defendant. As such the occupation of the
deceased defendant over the said portion was unlawful as he
had no right to occupy the same.
9. Further reference was made to the suit filed by the
D appellant's father wherein an injunction order was passed in his
favour. It was after the said injunction order that the defendants
had demolished the wall in the sherry and constructed a door.
They had also removed chamber covers and replaced it with
tiles. As such it was held that the conduct of the defendants
E resulted in unhygienic conditions as it was impossible to clean
the drains. On behalf of the defendants there was no whisper
or challenge to the entire testimony on this point anywhere in
the cross-examination. The result of this was nuisance and
annoyance to the plaintiff as well as to other occupants of the
F suit property and this testimony has also not been challenged.
10. An appeal was filed against this order. The First
Appellate Court vide its order dated 11.09.08 partly allowed the
appeal. The trial Court's judgment was confirmed on the ground
of causing waste and damage as contemplated under Section
G 16 (1) (a) of the Maharashtra Rent Control Act, but the findings
of the trial Court on the ground of nuisance and annoyance were
set aside.
11. The Appellate Court noticed that in the suit filed by the
H defendants against the plaintiff, the defendants have specifically
SHALINI SHYAM SHETTY AND ANR. v. RAJENDRA
851
SHANKAR PATIL [ASOK KUMAR GANGULY, J.]
come out with the case that the dispute between the deceased
A
defendant and the plaintiff with regard to the alleged Sherry
premises, was settled and an affidavit to this effect dated
16.03.01 was executed by the defendant. The Appellate Court
thought it would be just and proper to take on record the certified
copy of the order of dismissal of suit filed by the defendants
B
dated 03.03.07 under provisions of Order 41 Rule 27 (b) CPC.
On perusal of the same it was found that the same was
dismissed for default.
12. The Appellate Court placing reli.ance on para 10 of the
affidavit of examination-in-chief of the defendants came to a
C
conclusion that it was mentioned therein that the possession
of the Sherry was with him and the said defendants handed
over the possession to the plaintiff, as per affidavit dated
16.03.01. As such it was for the defendants to explain how they
were occupying the said premises, to which there has been no
D
reasonable explanation offered. It was concluded that the
defendants had encroached upon the Sherry premises which
was not let out to them and the said act definitely amounted to
causing waste and damage to plaintiff's property.
13. With respect to the finding of nuisance it was observed
by the Appellate Court that admittedly, none of the
neighbouring occupier was examined by the plaintiff, which was
necessary. As such under such circumstances, just because
version of plaintiff is not challenged seriously it cannot be
concluded that the plaintiff has established his case. The
Appellate Court set aside the finding of the trial Court on this
ground only but confirmed the finding on other grounds of
eviction.
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14. The appellants then moved to the High Court with a
G
prayer to issue a writ of certiorari and/or any other writ, order
or command and call for the papers and proceedings from the
lower courts. The High Court dismissed the Writ Petition only
on the ground that against concurrent finding of facts by the
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[2010] 8 S.C.R.
A Courts below the exercise of writ jurisdiction is not warranted.
15. The facts of the case have been discussed in detail in
order to show that in a pure dispute of landlord and tenant
between private parties, a writ petition was entertained by the
High Court. It did not pass any order on the writ petition, inter
8 alia, on the ground that there are concurrent findings of fact. If
the findings have not been concurrent, the High Court might
have interfered. In any event High Court did not hold that a writ
petition is not maintainable in a t..ispute between landlord and
tenant in which both are private parties and the dispute is of
C civil nature.
16. It was urged before this Court that petitions under
Article 227 of the Constitution are filed against orders of Civil
Court and even in disputes between landlord and tenant. Under
o the Bombay High Court Rules, such petitions are called writ
petitions.
17. This Court is unable to appreciate this submission.
First of all this Court finds that the petition which was filed before
the High Court was a pure and simple writ petition. It was
E labeled as Writ Petition No. 7926 of 2008 (page 75 of the SLP
paper book).
F
18. In paragraph 6 of the writ petition it had been
categorically stated:
'That no efficacious remedy is available to the petitioners
than the present petition under Article 226 of the
Constitution of India. (page 89 of SLP paper book)"
19. In the prayer portion also a writ of certiorari has been
G prayed for in the following terms:
"(a)
That this Hon'ble Court be pleased to issue a writ
of certiorari and/or any other writ, order or command and
call upon the papers and proceedings of Appeal No.314
H
of 2007 together with Exh.8 in RAE Suit No.146 of 2001
SHALINI SHYAM SHETTY AND ANR. v. RAJENDRA 853
SHANKAR PATIL [ASOK KUMAR GANGULY, J.]
and also R.A.D. Suit Stamp No.61 of 2001 (Suit No.6/8
A
of 2001) and after going through the legality, validity and
propriety of the said Appeal and the said other matters,
this Hon'ble Court be pleased to quash and/or set aside
the judgment and decree dated 11th September, 2008
passed by the Hon'ble Appeal Court in Appeal No.314 of
B
2007 of the Petitioners and allow the same in toto".
20. Therefore, the petition filed before the High Court was
a writ petition.
21. Now coming to the Bombay High Court Rules, this
C
Court finds that in Chapter I Rule 2B of the Bombay High Court
(Appellate Side) Rules, 1960 (hereinafter referred to as rules)
it is provided:
"28. Petitions/applications under Article 226 an/or 227
D
of the Constitution of India, arising out of/or relating
to an order of penalty or confiscation etc. passed
under any special statute
•
All petitions/applications under Article 226 an/or 227
of the Constitution of India, arising out of or relating to an
order of penalty or confiscation or an order in the nature
thereof an order otherwise of a penal character and
passed under any special statute shall be heard and
decided by a Division Bench hearing Writ Petitions."
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F
22. It does not appear from the said Rules that petitions
under Article 227 are called writ petitions. What has been
provided under the said Rules is that petitions under Article 227
filed in respect of certain category of cases will be heard by a
Division Bench hearing writ petitions. That is merely indicative
G
of the forum where such petitions will be heard.
23. Chapter XVII of the Rules deals petitions under Articles
226 and 227 and applications under Articl~ 228 and rules for
issue of writs and orders under those Articles. lri Chapter XVII,
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[2010] 8 S.C.R.
A Rules 1 to 16 deal with petitions under Article 226 of the
Constitution.
24. Rule 17 deals with application under Articles 227 and
228. If a comparison is made between Rule 1 of Chapter XVII
B and Rule 17 of the same Chapter it will be clear that petitions
under Article 226 and those under Article 227 are treated
differently. Both these Rules are set out one after the other:
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G
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"1. (i) Applications for is!'"ue of writs, directions, etc.
under Article 226 of the Constitution
Every application for the issue of a direction, order
or writ under Article 226 of the Constitution shall, if the
matter in dispute is or has arisen substantially outside
Greater Bombay, be heard and disposed of by a Division
B_ench to be appointed by the Chief Justice. The
application shall set out therein the relief sought and the
grounds on which it is sought, it shall he solemnly affirmed
or supported by an affidavit In every such application, the
applicant shall state whether he has made any other
application to the Supreme Court or the High Court in
respect of the same matter and how that application has
been disposed of.
(ii) Applicant to inform Court, if during pendency of
an application, the Supreme Court has been
approached.
If the applicant makes an application to the Supreme
Court in respect of the same matter during the pendency
of the application in the High Court, he shall forthwith bring
this fact to the notice of the High Court filing an affidavit in
the case and shall furnish a copy of such affidavit to the
other side.
(iii) Hearing may be adjourned pending decision by
Supreme Court.
SHALINI SHYAM SHETTY AND ANR. v. RAJENDRA
855
SHANKAR PATIL [ASOK KUMAR GANGULY, J.]
The Court may adjourn the hearing of the application made
A
to it pending the decision of the Supreme Court in the
matter."
"17. (i) Applications under Article 227 and 228
An application invoking the jurisdiction of the High
Court under Article 227 of the Constitution or under Article
228 of the Constitution, shall be filed on the Appellate Side
B
of the High Court and be heard and disposed of by a
Division bench to be appointed by the Chief Justice. The
application shall set out therein the relief sought and the
C
grounds on which it is sought. It shall be solemnly affirmed
or supported by an affidavit. In every such application, the
applicant shall state whether he has made any other
application to the Supreme Court or the High Court in
respect of the same matter and how that application is
D
disposed of.
(ii) Application to inform Court, if, during pendency
of an application, the Supreme Court is approached.
If the applicant makes an application to the Supreme
Court in respect of the same matter during the pendency
of the application in the High Court, he shall forthwith bring
this fact to the notice of the High Court by filing an affidavit
in the case and shall furnish a copy of such affidavit to the
other side.
(iii) Hearing may be adjourned pending decision by
Supreme Court
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F
The Court may adjourn the hearing of the application
made to it pending the decision of the Supreme Court in
G
the matter.
(iv) Rule 2 to 16 to apply mutatis mutandis
Provision of Rules 2 to 16 above shall apply mutatis
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[2010) 8 S.C.R.
A
mutandis to all such applications.
25. The distinction between the two proceedings also
came up for consideration before the Bombay High Court and
in the case of Jhaman Karamsingh Dadlani vs. Raman/a/
B Manek/a/ Kantawala (AIR 1975 Bombay 182) the Bombay High
Court held:
c
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"2. This High Court since its establishment in 1862 under
the Letters Paten.t has been exercising original as well as
appellate jurisdiction and its functioning is regulated by 'the
Bombay High Court (Original Side) Rules, 1957' and
'Rules of the High Court of Judicature at Bombay,
Appellate Side, 1960' (hereinafter referred to respectively
as 'O. S. Rules' and 'A. S. Rules'). Rules also provide for
disposal of petitions under Articles 226 and 227 of the
Constitution. Supervisory jurisdiction of the High Court
under Article 227 of the Constitution is exclusively vested
in a Bench on the Appellate Side and jurisdiction of either
of the two wings of this Court under Article 226, however,
depends upon whether "the matter in dispute" arises
substantially in Greater Bombay or beyond it, the same
being exercisable by the original Side in the former case
and by the Appellate Side in the latter case. This is not
made dependent on the matter being in fact of an original
or appellate nature. The contention of the learned
Advocate General and Mr. Desai is that the matter in
dispute, on averments in the petition, must be said to have
arisen at any rate, substantially within the limits of Greater
Bombay and the petitioner cannot be permitted to avoid
the impact of these Rules and choose his own forum by
merely quoting Article 227 of the title and prayer clause of
the petition, when it is not attraCted or by merely making a
pretence of the dispute having arisen beyond Greater
Bombay by referring to non-existing facts to attract the
Appellate Side jurisdiction under Article 226"
SHALINI SHYAM SHETTY AND ANR. v. RAJENDRA 857
SHANKAR PATIL [ASOK KUMAR GANGULY, J.]
26. In paragraph 4 of Jhaman (supra}, the High Court
A
further distinguished the nature of proceeding under Article 226
of the Constitution to which, depending upon the situs of the
cause of action, Rule 623 of Bombay High Court original Side
Rules will apply. The said rule is set out below:
"623. Every application for the issue of a direction, order
or writ under Article 226 of the Constitution other than an
application for a writ of Habeas Corpus shall, if the matter
B
in dispute is or has arisen substantially within Greater
Bombay, be heard and disposed of by such one of the
Judges sitting on the Original Side or any specially
C
constituted Bench as the Chief Justice may appoint. The
application shall be by petition setting out therein the relief
sought and the grounds on which it is sought. The petition
shall be supported by an affidavit. In every such petition
the petitioner shall state whether he has made any other
D
application to the Supreme Court or the High Court in
respect of the same matter and how that application has
been disposed of. The petitioner shall move for a Rule Nisi
in open Court.
E
If the Petitioner makes an application to the
Supreme ·Court in respect of the same matter during the
pendency of the petition in the High Court, he shall forthwith
bring this fact to the notice of the High Court by filing an
affidavit in the case and shall furnish a copy of such
F
affidavit to the other side.
The Court may adjourn the hearing of the application
made to it pending the decision of the Supreme Court in
the matter."
27. From a perusal of paragraph 4 of Jhaman (supra) it
G
is clear that to a proceeding under Article 227 of the
Constitution of India only the appellate side rules of the High
Court apply. But to a proceeding under Article 226, either the
original side or the appellate side rules, depending on the situs
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[2010) 8 S.C.R.
A of the cause of action, will apply.
28. Therefore High Court rules treat the two proceedings
differently in as much as a proceeding under Article 226, bein.g
an original proceeding, can be governed under Original Side
B Rules of the High Court, depending on the situs of the cause
of action.