ABICHANDANI

(1.) A Division Bench, by its order dated 23rd June, 1994, has referred the question as to whether petitions, against an order of the Tribunal under the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as " the"), when purported to be filed under Art. 226 of the Constitution of India, in conjunction with Art. 227 or otherwise, and where a writ in the nature of Certiorari is prayed for, are maintainable, for consideration of the Larger Bench in view of the two decisions of this Court cited before it on behalf of the respondent-State in Himatlal K. Parekh v. Competent Authority and Deputy Collector (ULC), Rajkot and Anr., 1990 (1) GLH 446:[1990 (1) GLR 626 [LQ/GujHC/1989/181] ], and in Jashubhai Hiralal Gandhi v. Competent Authority and Deputy Collector, Ahmedabad and Ors., 1990 (2) GLH 609 : [1990 (2) GLR 1140 [LQ/GujHC/1990/50] ]. Relying on these decisions, a contention was urged that an order passed by the Tribunal under the said Act can only be challenged under Art. 227 of the Constitution of India and, therefore, a Letters Petent Appeal was not maintainable against orders passed by a single Judge of this Court in such matters.

(2.) This Letters Patent Appeal is directed against the judgment and order dated 28th April, 1994 of the learned single Judge in Special Civil Application No. 2339 of 1990; (reported in 1994 (2) GLR 1564 [LQ/GujHC/1994/302] ) in a petition under Arts. 226 and 227 of the Constitution of India, questioning the correctness of the various orders, including an order passed by the Urban Land Tribunal at Ahmedabad (respondent No. 3 in the petition) on 28th December, 1988 in Appeal No. Rajkot 49 of 1986. By the said appellate order, the order issued by the Competent Authority, declaring the holding of the appellant to be in excess of the ceiling limit by 54,886.44 sq. metres was affirmed. The learned single Judge held that the appellant, by virtue of his conduct, had become disentitled from claiming any relief under Arts. 226 and 227 of the Constitution of India. It appears from the Judgment of the learned single Judge that the petition was treated as a petition under Arts. 226 and 227 of the Constitution of India.

(3.) Under Sec. 33 of the said Act, a person, aggrieved by an order made by the Competent Authority under the, not being an order under Sec. 11, or subsection (1) of Sec. 30, can prefer an appeal within the prescribed time to the Appellate Authority. The Appellate Authority is empowered to entertain the appeal even after the expiry of the prescribed period of 30 days, if sufficient cause is shown for the delay. Under sub-section (2) of Sec. 33, the Appellate Authority is empowered to make orders as it deems fit in such Appeals, after giving the appellant an opportunity of being heard. It is clear from the provisions of Sec. 33 that the Appellate Authority exercises judicial functions. Respondent No. 3-Urban Land Tribunal was the Appellate Authority, constituted under the provisions of Sec. 33 of the, and it has passed the order, after hearing the parties and after recording reasons therein, dismissing the appeal of the appellant on 28th December, 1988, at Annexure D to the petition. From the nature of powers conferred on the said Urban Land Tribunal and the manner in which such powers are required to be exercised, it is obvious that the Tribunal exercises judicial functions.

(4.) In Himatlals case (supra), the Division Bench was considering the question whether Letters Patent Appeal would lie against an order of the single Judge, in a writ petition filed against the decision of the Tribunal, given in an appeal under Sec. 33 of the said Act. It appears that the writ petition was filed under Arts. 226 and 227 of the Constitution of India. The Division Bench, while holding that the Urban Land Tribunal at any rate exercised quasi-judicial powers, if not judicial powers while deciding such appeals under Sec. 33 of the, held as under :- " .... Whatever label be attached to the petitions challenging the legality and validity of the orders that may be passed by the Urban Land Tribunal, in substance and in essence such petitions are under Art. 227 of the Constitution of India or at any rate in such matters the High Court is to exercise its Certiorari jurisdiction. Thus, such petitions will have to be decided on the basis of the record and within the very limited scope of Art. 227 of the Constitution of India. Once it is held as above, Letters Patent Appeal against the order passed by the learned single Judge in such matters would not be maintainable. .... " Again, in paragraph 4, it was held by the Division Bench as follows :- " ... In view of the aforesaid settled legal position, petition challenging legality and validity of order passed by the Urban Land Tribunal in appeal under Sec. 33 of the Urban Land (Ceiling and Regulation) Act, 1976 is in substance and in essence a petition under Art. 227 of the Constitution of India. ....." The Division Bench was, thus, of the opinion that whatever label be attached to the petitions, challenging an order of the Tribunal, passed under Sec. 33 of the, meaning thereby, even if the petitions were filed under Arts. 226 and 227 or under Art. 226, such petitions were required to be treated as petitions under Art. 227 and, therefore, Letters Patent Appeal was not maintainable against an order of the single Judge in such matters in view of the provisions of Clause 15 of the Letters Patent. In the process of coming to this decision, the Division Bench found iteself fortified in this view by two Division Bench unreported judgments of this Court, rendered in Letters Patent Appeal No. 202 of 1984, decided on June 27, 1984 (Coram : P. S. Poti, C.J. and S. L. Talalti, J.) and in Letters Patent Appeal No. 213 of 1986, decided on February 19, 1987 (Coram : P. R. Gokulakrishnan, C. J. and G. T. Nanavati, J.). In Letters Patent Appeal No. 202 of 1984, it appears that the Letters Patent Appeal was disposed of at the admission stage, by order dated 27th June, 1984, which reads as under :- " ... Since the order under challenge is that of Urban Land Tribunal and ex-officio Secretary to the Government passed in its capacity as Tribunal, the petition before the learned single Judge could have been only under Art. 227 of the Constitution and if so, the Letters Patent Appeal is not competent. Hence, dismissed. Ad interim relief vacated. ..."

(5.) The order of the learned single Judge, impugned in the said Letters Patent Appeal No. 202 of 1984, was passed in a writ petition, filed under Art. 226 of the Constitution of India, praying for appropriate writ, direction or order or a direction on the Urban Land Tribunal to take on file the memo of appeal. The Tribunal had refused to entertain the appeal on the ground that it was beyond time.

(6.) In Letters Patent Appeal No. 213 of 1986, the Division Bench, while considering the question whether Letters Patent Appeal would lie against an order of the single Judge, in a petition praying for setting aside the order of the Urban Land Tribunal, in which it was held that the appeal preferred by the party was time barred and no sufficient cause was shown to condone the delay, held as under :- " .... In the Special Civil Application, the only prayer made was that the order of dismissal of appeal passed by the Tribunal may be quashed and set aside and that the Tribunal may be directed to hear the appeal on merits. The Tribunal, as can be seen from the impugned order, dismissed the appeal only on the ground that the appeal preferred before it was time barred. Clearly, therefore, as can be seen from the averments made in the petition, it is a petition under Art. 227 of the Constitution, questioning the order passed by the Tribunal, which dismissed the appeal of the appellants only on the ground that it was time barred. ..." The Division Bench further held that :- " ... In that view of the matter, the petition before the learned single Judge can only be considered as one filed under Art. 227 of the Constitution of India and as such we are of the view that the present Letters Patent Appeal is not maintainable. ..." Special Civil Application No. 1838 of 1986, from which the said Letters Patent Appeal arose, was, in fact, filed under Art. 226 of the Constitution of India, seeking an appropriate writ, direction or order, for quashing the order of the Urban Land Tribunal under Sec. 33 of the.

(7.) In Jashubhai Hiralal Gandhis case (supra), the Division Bench was concerned with the same question as to whether Letters Patent Appeal would lie against an order of the single Judge, made in a petition challenging an order of the Tribunal under Sec. 33 of the said Act. It is clear from the judgment that the petition was filed under Art. 226 of the Constitution. The Division Bench, after discussing the facts, held as under :- " ... From the facts we have discussed above and from the provisions of the U.L.C. Act, it is clear that the writ proceedings entertained by this Court cannot be considered as original proceedings of this Court decided by the learned single Judge. It is clear from the provisions of the U. L. C. Act that orders passed by the authorities concerned duly declaring the excess lands are of quasi-judicial nature and not administrative orders. Hence, the writ proceedings which were entertained by the learned single Judge and disposed of by him can only be under Art. 227 of the Constitution and as such Letters Patent Appeal under Clause 15 of the Letters Patent is not maintainable. ..."

(8.) The view of this Court, reflected in the above four decisions is that even if a writ petition is filed under Art. 226, or both under Arts. 226 and 227, against an order made by the Urban Land Tribunal under Sec. 33 of the said Act, such writ proceedings can be entertained by the single Judge only under Art. 227 of the Constitution. This, notwithstanding the fact that the petition may have been filed under Art. 226, praying for a writ of Certiorari, against the order of the Tribunal, and though the Tribunal exercises functions of judicial or quasi-judicial nature in deciding appeals under Sec. 33 of the.

(9.) The Supreme Court, in Umaji Keshao Meshram and Ors. v. Smt. Radhikabai and Anr., AIR 1986 SC 1272 [LQ/SC/1986/78] , in context of the provisions of Clause 15 of the Letters Patent (Bombay), which is also applicable to Gujarat, in detail considered the question of maintainability of Letters Patent Appeal against the orders of a single Judge, made in a petition filed under Art. 226 or Art. 227 of the Constitution. The Supreme Court held that a proceeding under Art. 226 is an original proceeding and when it concerns civil rights, it is an original civil proceeding. Consequently, where petition, filed under Art. 226 of the Constitution, is, according to the Rules of a particular High Court, heard by a single Judge, an intra Court appeal will lie from that judgment if such a right of appeal is provided in the Charter of that High Court whether such Charter be Letters Patent or a Statute. Clause 15 of the Letters Patent of the Bombay High Court gives, in such a case, a right of intra Court appeal and, therefore, the decision of a single Judge of that High Court, given in a petition under Art. 226, would be appealable to a Division Bench of that High Court. It was further held that a proceeding under Art. 227 was not an original proceeding and, therefore, intra Court appeal did not lie against the judgment of a single Judge of the Bombay High Court, given in a petition under Art. 227, by reason of such appeal being expressly barred by Clause 15 of the Letter Patent of that High Court. Considering cases, where petitions are filed both under Arts. 226 and 227 of the Constitution of India, the Supreme Court held :- " ... In our opinion, where the facts justify a party in filing an application either under Art. 226 or 227 of the Constitution, and the party chooses to file his application under both these Arts., in fairness and justice of such party and in order not to deprive him of the valuable right of appeal the Court ought to treat the application as being made under Art. 226, and if in deciding the matter, in the final order the Court gives ancillary directions which may pertain to Art. 227, this ought not to be held to deprive a party of the right of appeal under Clause 15 of the Letters Patent where the substantial part of the order sought to be appealed against is under Art. 226. ..." The above observations of the Supreme Court were reiterated in later decisions of the Supreme Court in Sushilabai Laxminarayan Mudliyar and Ors. v. Nihalchand Waghajibhai Shaha and Ors., AIR 1992 SC 185 [LQ/SC/1991/337] , and in Mangalbhai and Ors. v. Dr. Radhyshyam, AIR 1993 SC 806 [LQ/SC/1992/439] . In the latter decision, the Supreme Court observed that the learned single Judge had nowhere mentioned in his judgment that he was exercising powers under Art. 227 of the Constitution and further that he was examining the matter on merit and had set aside the orders of the Rent Controller, as well as the Deputy Collector, on the ground of perversity. It was held that 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, there was no manner of doubt that it was an order passed under Art. 226 of the Constitution and, therefore, the Letters Patent Appeal was maintainable against such order.

(10) (10.) The principle laid down in Umajis case (supra) was followed by the Full Bench of the Bombay High Court in Jagdish Balwantrao Abhyankar and Ors. v. State of Maharashtra and Ors., AIR 1994 Bombay 141.

(11.) The question whether a party would be justified in invoking the jurisdiction of the High Court under Art. 226 against an order made by the Tribunal, would take us to the scope of writ of Certiorari and the nature of the order of the Tribunal.

(12.) Writ of Certiorari would lie against the orders of subordinate Courts and inferior Tribunals. The High Court has power of superintendence over its Tribunals within its territory, under Art. 227 and, therefore, such Tribunals are inferior Tribunals, amenable to the writ jurisdiction of the High Court under Art. 226 of the Constitution so that writs of Certiorari and Prohibition can issue against them. If such Tribunal assumes wrong jurisdiction, it can be stopped by a writ of Prohibition and if it makes an order, which falls within the scope of the writ of Certiorari, the same can be quashed under Art. 226. The object of the writ of Certiorari is to secure that the jurisdiction of the inferior Tribunal should be properly exercised. This writ is issued to direct inferior Courts, Tribunals or authorities, to transmit to the Court record of proceedings pending therein for scrutiny and, if necessary, for qushing the same. As held by the Supreme Court in Harbans Lal v. Jagmohan Saran, AIR 1986 SC 302 [LQ/SC/1985/330] , a writ in the nature of Certiorari may be issued if the order of the inferior Tribunal or subordinate Court suffers from the error of jurisdiction, or from a breach of the principles of natural justice, or is vitiated by a manifest or apparent error of law. The expression Tribunal, would include within its ambit, adjudicating bodies, provided they are constituted by the State and are invested with judicial, as distinguished from purely administrative or executive functions (see Durga Shankar Mehta v. Raghuraj Singh and Ors., AIR 1954 SC 520 [LQ/SC/1954/99] ). As held by the Supreme Court in All Party Hill Leaders Conference, Shillong v. Captain W. A. Sangma and Ors., AIR 1977 SC 2155 [LQ/SC/1977/263] , the principal test, which must, necessarily, be present for determining the character of the authority as Tribunal, is whether that authority is empowered to exercise any adjudicating power of the State and whether the same has been conferred on it by any statute or a statutory rule. It is clear from the provisions of Sec. 33 of the that the said Tribunal, which is the Appellate Authority, is statutorily prescribed and has appellate powers over the orders made by the Competent Authority under the. The Tribunal clearly exercises adjudicating power while deciding such appeals. The requirement of hearing is also statutorily incorporated and would constitute manner of exercise of the appellate power statutorily prescribed. The Urban Land Tribunal under the provisions of the said Act is the legal authority to determine questions affecting the rights of the parties and has the duty to act judicially. It, therefore, follows that against the orders made by such Tribunal, a writ of Certiorari or a writ in the nature of Certiorari can issue under Art. 226 of the Constitution. In other words, the aggrieved party would be justified in invoking the provisions of Art. 226 of the Constitution for a writ of Certiorari against the order made by the Urban Land Tribunal in exercise of its judicial functions conferred on it by Sec. 33 of the said Act. The decisions of this Court, referred to above, proceed on an assumption that an order of the Tribunal could be challenged only under Art. 227, and that the petitions, even if filed under Art. 226 against such orders, should be treated as petitions under Art. 227. For the reasons aforesaid, we are, with respect, unable to subscribe to this view.

(13.) In the Present case, the grounds taken in the writ petition, unmistakably, go to show that it was a petition under Art. 226 and from the order of the earned single Judge, it would appear that the petition was considered, both under Arts. 226 and 227. We are of the view that Letters Patent Appeal under Clause 15 would lie against an order made by the single Judge in such petitions challenging the order of the Urban Land Tribunal passed under Sec. 33 of the. The aforesaid decisions of this Court, to the extent it is held that the petitions, filed under Art. 226, or both under Arts. 226 and 227 against an order of the Urban Land Tribunal, were to be treated, in substance and in essence, as petitions under Art. 227 and, therefore, no Letters Patent Appeal lies against the orders made by a single Judge in such petitions, are, therefore, in our opinion, in conflict with the decisions of the Supreme Court in Umajis case (AIR 1986 SC 1272 [LQ/SC/1986/78] ), Shushilabais case (AIR 1992 SC 185 [LQ/SC/1991/337] ) and Mangalbhai and Ors. (AIR 1993 SC 806 [LQ/SC/1992/439] ) and for reasons aforesaid no longer good law to the extent of the above conflict. In our opinion, a petition under Art. 226 for a writ of Certiorari or a writ in the nature of Certiorari would lie against an order of the Urban Land Tribunal passed under Sec. 33 of the Urban Land (Ceiling and Regulation) Act, 1976, and orders made in such petitions by the single Judge are subject to appeal under Clause 15 of the Letters Patent, read with Chapter VI, more particularly, Rule 82 of the Gujarat High Court Rules, 1993. This would be so, even if the petition is purported to be filed under Art. 226, in conjunction with Art. 227 or otherwise. The question referred to us is answered accordingly. The matter will now be placed before the Division Bench for further proceedings.