J.B. Pardiwala, J.

1. In this appeal, the challenge is to the judgment and order dated 27-6-2011 passed by learned Single Judge in Spl. C.A. No. 333 of 2002, whereby the learned Single Judge set aside the order passed by Gujarat Revenue Tribunal and remanded the proceedings to the Collector for passing fresh order in accordance with law, bearing in mind the observations made by learned Single Judge in his order dated 27-6-2011. The facts relevant for the purpose of deciding this appeal can be summarised as under :

1.1. The dispute pertains to land admeasuring about 928 acres and 21 gunthas of the ownership of appellant-original respondent No. 1 and respondent Nos. 2, 3 and 4, who represent the ancestry of erstwhile rulers of Jamnagar. It appears that with respect to the land in question bearing Survey No. 1/A, the Mamlatdar and A.L.T. instituted proceedings under the Gujarat Agricultural Lands Ceiling Act (for short "the Ceiling Act"). Record reveals that after series of remands, the Mamlatdar and A.L.T. by order dated 14-3-1995, declared that the lands are not agricultural lands within the meaning of term so defined under Sec. 2 clause (17) of the Ceiling Act. The Mamlatdar, and A.L.T. therefore, ordered to drop the proceedings.

1.2. The record reveals that Mamlatdars order was taken in suo motu revision by the Collector. The Collector issued notice to the appellant herein and original respondent Nos. 2, 3 and 4 and called upon them to reply as to why the order of the Mamlatdar should not be taken in suo motu review for reasons mentioned in the notice dated 8-1-1996.

1.3. The record further reveals that the appellant herein was the only person who responded to the notice issued by the Collector and appeared through the legal representative. The Collector, however, vide order dated 9-2-1996, set aside the order of Mamlatdar holding that the land was agricultural land and further he was of the opinion that the appellant herein and original respondent Nos. 2, 3 and 4 were in unauthorised possession thereof. He, therefore, ordered summary eviction of appellant herein and original respondent Nos. 2, 3 and 4 from the land in question under Sec. 61 of Saurashtra Land Reforms Act.

1.4. The appellant alone preferred Revision Application before Gujarat Revenue Tribunal. Gujarat Revenue Tribunal in the said revision application passed an order dated 6-11-2000 and set aside the order of Collector, primarily on the ground that Collector ordered eviction of land without putting the appellant herein and original respondent Nos. 2, 3 and 4 to notice of such proposed action.

1.5. The State of Gujarat, being aggrieved and dissatisfied with the order dated 6-11-2000, passed by Gujarat Revenue Tribunal, challenged the same by preferring Spl. C.A. No. 333 of 2002.

1.6. Learned Single Judge, after hearing the parties and perusal of the necessary records, thought fit to set aside the order of Gujarat Revenue Tribunal and to remand the proceedings to the Collector for passing fresh order in accordance with law, bearing in mind the observations made by the learned Single Judge.

1.7. The appellant-original respondent No. 1 being aggrieved by such order passed by learned Single Judge is before us by way of this appeal under Clause 15 of the Letters Patent.

2. We have heard learned Senior Counsel Mr. Percy Kavina appearing with Mr. Vivek N. Mapara, Advocate for the appellant and Ms. Krina Calla, learned A.G.P. for the respondent-State.

3. Learned Counsel for the appellant submitted that the impugned judgment and order passed by the learned Single Judge is erroneous in law and deserves to be quashed and set aside. He would further contend that the learned Single Judge erred in holding that the land in question being an agricultural land has attained finality, and hence, the same cannot be disputed. He would also contend that the learned Single Judge ought to have held that the land in dispute was not an agricultural land, and hence, the provisions of Gujarat Agricultural Lands Ceiling Act were not attracted in the present case.

4 During the course of hearing of the appeal, we noticed something very important. The main petition being Spl. C.A. No. 333 of 2002 was filed by the State of Gujarat, wherein the main prayer was to issue a writ of certiorari or any other appropriate writ, order or direction for quashing and setting aside the order passed by the Gujarat Revenue Tribunal in Revision Application No. TEN. B.R. 11 of 1996, dated 6-11-2000. We noticed that in the main petition, Gujarat Revenue Tribunal was not impleaded as party-respondent. Be that as it may. However, what is important is as to whether State of Gujarat could have filed a petition under Art. 226 of the Constitution challenging the order passed by Gujarat Revenue Tribunal, without impleading the Tribunal as a party-respondent. We looked into these aspects from the view point of maintainability of the present appeal. It is a settled position of law now that a writ petition is a remedy in public law which may be filed by a person, but the main respondent should be the Government, Governmental agency or a State or instrumentality of the State within the meaning of Art. 12 of the Constitution. Private individuals cannot be equated with the State or instrumentalities of the State. All the respondents in a writ petition cannot be private parties, but private parties acting in collusion with the State can be respondents in the writ petition.

5. It is a settled principle of law that in a petition for relief under Art. 226 of the Constitution, the Court/Tribunal whose order is impugned in the petition must be made as a party to the petition so that the writ sought from the Court can go against the Court/Tribunal, but if the petition is for relief under Art. 227 of the Constitution, it is well settled that the Court/Tribunal whose order is impugned in a petition need not be a party in the writ petition, the reason being by entertaining a petition under Art. 227 of the Constitution, the High Court exercises its power of superintendence, which is analogous to the revisional jurisdiction.

6. At the very first brush, we could realize that State of Gujarat though labelled the petition as under Art. 226/227 of the Constitution, the petition substantially remained under Art. 227 of the Constitution because Gujarat Revenue Tribunal was not impleaded as a party-respondent.

6.1. The position of law is now made further clear by a recent pronouncement of the Full Bench of this High Court in the case of Bhagyodaya Co-operative Bank Ltd. v. Natvarlal K. Patel, (Spl. C.A. No. 12382 of 2010 with Spl.C.A. No. 15308 of 2010) decided on 28-7-2011 reported in 2011 (3) GLR 2706 (FB), wherein the Full Bench held as under :

15. From the aforesaid decisions rendered by this Court and the Supreme Court, as referred to above, we hold as follows :-

(i) In a petition for relief under Art. 226 of Constitution of India against any judgment or award passed by the Industrial Tribunal or Labour Court, such Industrial Tribunal or Labour Court is a necessary party. In absence of such necessary party, no Rule and writ can be issued under Art. 226 against such Industrial Tribunal or the Labour Court, and

(ii) But if a petition for relief is filed under Art. 227 of the Constitution of India, the Court or the Tribunal whose order is impugned in the petition, is not a necessary party to such petition under Art. 227 of the Constitution of India. The High Court can exercise the power under Art. 227 even in absence of such Court or the Tribunal.

6.2. The aforesaid issue also fell for consideration before the Division Bench of this Court in Gustadji Dhanjisha Buhariwala v. Nevil Bamansha Buhariwala, reported in 2011 (2) GLH 147 : 2011 (2) GLR 1557. [LQ/SC/2011/216] In the said case, the Division Bench referred to different decisions of this Court, other High Courts and the Supreme Court and held as follows :

54. What can be deduced as explained by the Supreme Court in Shalinis case (supra) that a writ petition is a remedy in public law which may be filed by a person, but the main respondent should be the Government, Governmental agency or a State or instrumentality of the State within the meaning of Art. 12 of the Constitution. Private individuals cannot be equated with the State or instrumentalities of the State. All the respondents in a writ petition cannot be private parties. But private parties acting in collusion with the State can be respondents in the writ petition. It is a settled principle of law that in a petition for relief under Art. 226 of the Constitution, the Court/Tribunal whose order is impugned in the petition must be made a party to the petition so that the writ sought from the Court can go against the Court/Tribunal, but if the petition is for relief under Art. 227 of the Constitution, it is well settled that the Court/Tribunal whose order impugned in a petition need not be a party in the writ petition, the reason being by entertaining the petition under Art. 227 of the Constitution the High Court exercises its power of superintendence, which is analogous to the revisional jurisdiction.

6.3. We brought to the notice of learned Counsel for the appellant that the main petition was under Art. 227 of the Constitution and learned Single Judge, in exercise of his powers under supervisory jurisdiction under Art. 227 of the Constitution thought fit to set aside the order of Gujarat Revenue Tribunal and remanded the matter to the Collector for fresh consideration in accordance with law and in this view of the matter, the appeal would not be maintainable under Clause 15 of the Letters Patent.

7. Learned Counsel for the appellant vehemently submitted that State of Gujarat may not have thought fit to implead Gujarat Revenue Tribunal as a party-respondent and State of Gujarat may have thought fit to only invoke supervisory jurisdiction of the learned Single Judge under Art. 227 of the Constitution, but taking into consideration the findings recorded by the learned Single Judge and the nature of the relief granted, it can be said without any manner of doubt that the same was in exercise of extraordinary powers under Art. 226 of the Constitution, and therefore, the present appeal at the instance of original respondent No. 1, the appellant herein, would be maintainable.

8. It is true that even if a petition is filed before the learned Single Judge invoking Art. 227 of the Constitution, and a decision is rendered in favour of the petitioner, it is open to the respondents to demonstrate before the Appellate Court that the nature of the controversy, the averments contained in the petition, the reliefs sought and the principal character of the order of the Single Judge would support the maintainability of the appeal on the ground that the facts justified invocation of both Arts. 226 and 227 of the Constitution. There cannot be any doubt so far as this proposition is concerned.

However, we need to undertake an exercise to come to the conclusion as to whether the nature of the order and the relief granted by learned Single Judge could have been under Art. 227 of the Constitution in exercise of his supervisory jurisdiction or not.

9. Learned Counsel appearing for the appellant submitted that in view of the decision of the Supreme Court in case of Umaji Keshao Meshram v. Smt. Radhikabai, reported in : AIR 1986 SC 1272 [LQ/SC/1986/78] , decision of the learned Single Judge in a petition filed under Art. 226 or 227, claiming a relief of quashing orders of the Tribunal or Court is appealable under Clause 15. He would submit that such relief can be granted by issuing a writ of certiorari and in the present case while allowing the petition, learned Single Judge has issued a writ of certiorari quashing and setting aside the order passed by the Gujarat Revenue Tribunal, which was impugned.

10. The ruling of the Supreme Court in Umaji Keshao Meshram v. Smt. Radhikabai (supra) is a landmark ruling on the issue. In Umaji Keshao Meshrams case, the Supreme Court has observed as under :

Para 99

We are afraid, the Full Bench has misunderstood this scope and effect of the powers conferred by these Articles. These two Articles stand on an entirely different footing. As made abundantly clear in the earlier part of this judgment, their source and origin are different and the models upon which they are patterned are also different. Under Art. 226, the High Courts have power to issue directions, orders and writs to any person or authority including any Government. Under Art. 227 every High Court has the power of superintendence over all Courts and Tribunals throughout the territory in relation to which it exercises jurisdiction. The power to issue writs is not the same as the power of superintendence. By no stretch of imagination can a writ in the nature of habeas corpus or mandamus or quo warranto or prohibition or certiorari he equated with the power of superintendence. These are writs which are directed against persons, authorities and the State. The power of superintendence conferred upon every High Court by Art. 227 is a supervisory jurisdiction intended to ensure that subordinate Courts and Tribunals act within the limits of their authority and according to law....

Para 100

Under Art. 226 an order, direction or writ is to issue to a person, authority or the State. In a proceeding under that Article the person, authority or State against whom the direction, order or writ is sought is a necessary party. Under Art. 227, however, what comes up before the High Court is the order or judgment of a subordinate Court or Tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate Court or Tribunal has acted within its authority and according to law.

A series of decisions of this Court has firmly established that a proceeding under Art. 226 is an original proceeding and when it concerns civil rights, it is an original civil proceeding.

Para 101

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.

Para 102

It is equally well-settled in law that a proceeding under Art. 227 is not an original proceeding.

Para 103

The result is that an intra-Court appeal does 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 Letters Patent of that High Court.

Para 106

Rule 18 provides that where such petitions are filed against orders of the Tribunals or authorities specified in Rule 18 of Chapter XVII of the Appellate Side Rules or against decrees or orders of Courts specified in that Rule, they shall be heard and finally disposed of by a Single Judge. The question is whether an appeal would lie from the decision of the Single Judge in such a case. In our opinion, where the facts justify a party in filing an application either under Arts. 226 and 227 of the Constitution and the party chooses to file his application under both these Articles, in fairness and justice to 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.

11. Clause 15 of the Letters Patent provides for an appeal from the judgment of the Court of the original jurisdiction to the High Court in its appellate jurisdiction. Powers of the High Court under Arts. 226 and 227 of the Constitution of India are distinct, separate and operate in different fields, even if in some cases, result to be achieved is the same. Proceedings under Art. 226 are original in nature. However, the High Court under Art. 227 exercises the powers of superintendence over the subordinate Courts and the Tribunals.

12. The powers contemplated by the Constitution makers under Arts. 226 and 227 appear to be different. The former is described as the power to issue certain writs, orders or directions. The latter is described as the power of superintendence. There are two separate Articles in the Constitution next door to each other dealing with these powers. The power under Art. 226 is only judicial. The power under Art. 227 is both judicial and administrative. The power under Art. 226 is exercised on the application of a party and for the enforcement of a legal right.

13. The power under Art. 227 can be exercised suo motu by the Court as the custodian of all the justice within the limits of its territorial jurisdiction and for the vindication of its position as such.

14. The power under Art. 227 is a power that can be exercised only over Courts and Tribunals. On the other hand, the power under Art. 226 is a power that can be exercised not only over Courts and Tribunals, but also over other bodies like the Government.

15. Prior to the Constitution, the power to issue writs could not be considered to be a branch of the power of superintendence because the power of superintendence possessed by the High Courts did not carry with it the power to issue writs. Even under the Constitution, the power of superintendence is treated as a power divorced from the power to issue writs. This is borne out by the fact that the Supreme Court possesses the power to issue writs, yet it does not possess the power of superintendence.

16. It is thus explicit according to us that there cannot be inter-changeability between the jurisdiction of the High Court under Arts. 226 and 227 even if occasionally the ultimate result to be achieved may be same or similar in nature. One cannot be substituted for other.

17. Proceedings under Art. 226 are original in nature. Aggrieved party can canvass grievance relating to infringement of the civil right. In these proceedings wrongdoer may be a person or an authority is a necessary party, since has a right to support, justify or defend the act complained of.

18. In contra-distinction, proceedings under Art. 227 are supervisory and superintending in nature. The High Court thereunder exercises the jurisdiction to ascertain and confirm whether the Court or Tribunal has discharged its function within its jurisdiction and according to law. Such Court or Tribunal when they have adjudicated a dispute relating to the contractual right between the parties are not necessary party in a proceeding under Art. 227. They have no obligation to defend their orders impugned in the proceedings wherein the aggrieved party claims a relief to quash the same. Such Courts or Tribunals cannot claim to be aggrieved due to quashing of their orders or can legitimately make complaint for non-joinder in a proceeding under Art. 227.

19. When such a decision of the learned Single Judge would be amenable to a challenge under Clause 15 was a question before the Supreme Court in Umajis case. The Supreme Court answered the same in Para 106 of the report. The Supreme Court has laid down that the appeal, lies under Clause 15 on fulfilling, the following conditions :

(a) The facts involved must warrant filing of petition under Arts. 226 and 227;

(b) The party accordingly filing the petition under both the Articles, and

(c) Substantial portion of the impugned judgment of the learned Single Judge must be in exercise of the power under Art. 226.

20. Right of appeal, cannot, therefore be availed merely by filing petition under Arts. 226 and 227 unless other conditions are fulfilled. Even otherwise, filing petition under Art. 226 or both under Arts. 226 and 227 cannot be a free choice left solely to the pleasure of a party. The option in this regard is duly controlled, regulated and guided by the facts involved, and grievance arising therefrom. When on facts involved, the grievance can suitably and adequately be redressed under Art. 227, the party acts wholly without justification in filing or styling petition under Arts. 226 and 227. Further, claiming a writ of certiorari in a prayer clause to quash the impugned order of Tribunal or Court by itself does not change the character or nature of the proceedings. The proceedings which are in substance and nature of a superintending jurisdiction, by reason of a claim of a writ of certiorari does not become of an original jurisdiction under Art. 226. Nature of jurisdiction or character of proceedings cannot be foisted by adopting such modalities.

21. We have to bear in mind as observed by the Supreme Court, these two Articles stand on entirely different footing and operate in different fields. They cannot as such mutually be exchanged by twisting, even if the result to be achieved or relief claimed may be analogous. Right of appeal under Clause 15, cannot therefore, be said to have been vested, merely by styling petition under Art. 226 or both under Arts. 226 and 227 and/or by articulating the prayer clause with a claim of a writ of certiorari. The same can be invoked only on fulfilling the conditions laid down by the Supreme Court as discussed above.

22. A petition justified on facts filed both under Arts. 226 and 227 can in fairness and justice be treated one under Art. 226, so as not to abrogate the right of a party to appeal. However, it does not mean in our opinion according to the ratio of the Supreme Court, on facts, if the grievance can be or has been entertained exclusively or principally by exercising jurisdiction under Art. 227, such exercise is to be presumed one under Art. 226 so as to clothe the party with a right of appeal. As laid down, the two Articles operate in different fields and with a different purpose, even in a given case result to be achieved may be identical. On facts, when the dispute or grievance can be adjudicated, mainly under Art. 227, then it would not be either justice or fair to treat the proceedings under Art. 226 so as to enable a party to avail a remedy of appeal under Clause 15.

23. We on the question of maintainability of appeal under Clause 15 are guided by the dictum laid down by the Supreme Court in Umajis case. We cannot afford to be generous in making the right available to the parties. Claiming relief under and amenability of the authority whose decision is impugned to the jurisdiction under Art. 226 do not settle the nature of proceedings. It solely depends as per the acidic test laid down by the Supreme Court, firstly on the facts involved and secondly, nature of jurisdiction could be exercised by the Single Judge. Scope of Clause 15 cannot be permitted to dwindle according to the mechanics adopted by the parties. Right to appeal under Clause 15 is to be settled as guided by the Supreme Court according to the nature of grievance arising from the facts involved in the case.

24. The petition before the learned Single Judge was no doubt filed under Arts. 226 and 227 claiming a relief to issue an appropriate writ, order or direction and quash and set aside the impugned order of the Civil Court. However, articulating, styling or designing the petition does not vest or divest in the parties a right of appeal under Clause 15. We may now consider one another important facet of the matter.

25. The learned Counsel for the appellant would submit that the learned Single Judge by setting aside the order passed by the Gujarat Revenue Tribunal and remanding the proceedings to the Collector for fresh consideration, can be said to have issued a writ of certiorari. He would submit that when the order of the Tribunal has been set aside and proceedings are remanded to the Collector for fresh consideration, it can be construed that the learned Single Judge have issued a writ under Art. 226 of the Constitution. To examine this contention, we would have to reproduce the operative part of the order passed by the learned Single Judge so as to ascertain as to whether actually a writ has been issued or learned Single Judge merely revised the order and thought fit to set aside the same and remand the proceedings to the Collector for fresh consideration. The relevant portion is reproduced hereinbelow :

19. With above observations, the order of G.R.T. is set aside. Proceedings are remanded to the Collector for passing fresh order in accordance with law, bearing in mind observations made hereinabove.

20. It is clarified that if Collectors order is adverse to the respondents, it will be open for them to challenge it before higher forum in accordance with law and all contentions would be open.

21. Petition is disposed of accordingly.

26. We have carefully gone through the impugned judgment. In our view, the judgment and order passed by the learned Single Judge does not show that the learned Single Judge considered the writ petition as one requiring exercise of power under Art. 226 of the Constitution. As a matter of fact, learned Single Judge could not have considered the petition as one under Art. 226 of the Constitution in absence of Gujarat Revenue Tribunal being a party in the main petition. The nature of the order also does not justify the appellants case that the learned Single Judge exercised powers under Art. 226 of the Constitution. On the other hand, from the approach made by the learned Single Judge while appreciating the facts of the case, we find that the jurisdiction exercised was akin to revisional or corrective jurisdiction. In other words, learned Single Judge has passed the impugned judgment and order in exercise of the supervisory jurisdiction. In this context, we may extract the following passage from Paragraph 38(9) of the judgment of the Supreme Court in Surya Dev Rai v. Ram Chander Rai, : 2003 (6) SCC 675 [LQ/SC/2003/758] :

While exercising jurisdiction to issue a writ of certiorari, 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.

27. The above-quoted portion read along with the principles of law stated in Paragraph 25 of the judgment in Surya Dev Rais case (supra) leaves no room for any doubt that the petition was considered and disposed of by the learned Single Judge in exercise of the supervisory jurisdiction under Art. 227 of the Constitution and not under Art. 226.

28. We may also refer to a Constitutional Bench decision of the Supreme Court in the case of State of Gujarat v. Vakhatsinghji Vajesinghji Vaghela, reported in : AIR 1968 SC 1481 [LQ/SC/1968/105] : 1969 GLR 48 (SC). The Supreme Court in Paragraph 14 of the judgment has held as under :

Art. 227 of the Constitution gives the High Court the power of superintendence over all Courts and Tribunals throughout the territories in relation to which it exercises jurisdiction. This jurisdiction cannot be limited or fettered by any Act of the State Legislature. The supervisory jurisdiction extends to keeping the subordinate Tribunals within the limits of their authority and to seeing that they obey the law. It was the duty of the Revenue Tribunal to award compensation to the Taluqdars in accordance with the provisions of Secs. 7 and 14 of the Act. The High Court had jurisdiction to revise the decision of the Tribunal where the Tribunal on a misreading of the provisions of Secs. 7 and 14 declined to do what was by those provisions of law incumbent on it to do. Tested in this light it does not appear that the High Court exceeded its jurisdiction under Art. 227 in revising the decision of the Tribunal in respect of the solatium and irrigational bunds. tanks and wells. Numerous cases were pending before the Revenue Tribunal in respect of compensation payable to the Taluqdars under the Bombay Taluqdari Tenure Abolition Act. To prevent miscarriage of justice it was necessary for the High Court to lay down general principles on which compensation should be assessed so that the Tribunal may act within the limits of their authority. On finding that the Tribunal had misconceived its duties under Secs. 7 and 14, the High Court could not only set aside its decision, but also direct it to make further inquiries after taking evidence. As pointed out in Hari Vishnu Kamath v. Syed Ahmed Ishaque, : 1955 (1) SCR 1104 [LQ/SC/1954/177] , the High Court in the exercise of its supervisory jurisdiction under Art. 227 can not only annul the decision of the Tribunal, but can also issue further direction in the matter.

29. As observed by the Supreme Court in Surya Dev Rais case (supra), the distinction between the exercise of power under Arts. 226 and 227 are getting obliterated. Often the exercise of power under the aforesaid Articles may overlap each other. However, we cannot accept the contention advanced on behalf of the appellant that the two jurisdictions are almost synonymous and in all cases where this Courts power under Art. 227 is invoked, it is possible to find out elements and ingredients which would attract the provisions of Art. 226 of the Constitution and vice versa. There cannot be any doubt about the fact that despite the overlapping of the powers under the aforesaid provisions in the Constitution, in given situations, there could be clear differences demonstrable or subtle, which distinguish and separate the exercise of the power under Arts. 226 and 227 of the Constitution. This is so, having regard to the language of the two Articles and the purpose to be served by the exercise of powers thereunder. Learned Single Judge having regard to the entire facts and circumstances of the case felt it necessary to set aside the order passed by Gujarat Revenue Tribunal and remand the proceedings to the Collector for fresh consideration. In our view, this is undoubtedly in the realm of the supervisory jurisdiction. There is no scope for any confusion as to the nature of power exercised by the learned Single Judge. We hold that the Letters Patent Appeal under Clause 15 is not maintainable. In the result, the appeal fails and is hereby dismissed with no order as to costs.