Holding

A petition filed under both Articles 226 and 227 must be treated as an application under Article 226 for the purpose of a Letters Patent appeal, and the Division Bench erred in holding the appeal non‑maintainable.

Summary

Shahu Shikshan Prasarak Mandal & Anr. filed a writ petition under Article 226 of the Constitution challenging an order of an industrial tribunal, alleging arbitrariness, unreasonableness and perversity. The Bombay High Court Single Judge dismissed the petition as non‑maintainable, and the Division Bench dismissed the subsequent Letters Patent Appeal (LPA). The Supreme Court held that the petition, although labelled under Article 226, also raised grounds falling within Article 227 and therefore could be treated as an application under Article 226 for the purpose of a Letters Patent appeal. The Court observed that the High Court had failed to consider the relevant provisions of the Bombay High Court Appellate Side Rules, 1960 and the case law interpreting Articles 226 and 227. Consequently, the Supreme Court allowed the appeal in part, set aside the Division Bench’s order and remitted the matter to the High Court to reconsider the maintainability and merits of the appeal.

Issues considered

Whether a writ petition filed under both Articles 226 and 227 of the Constitution is maintainable as a Letters Patent appeal under Clause 15 of the Letters Patent.
Whether the Division Bench of the Bombay High Court correctly held the Letters Patent appeal to be non‑maintainable.
Interpretation of Rules 3 and 18 of the Bombay High Court Appellate Side Rules, 1960 in relation to Articles 226 and 227.

Legislation cited

Bombay High Court (Appellate Side) Rules, 1960s. Rule 18, s. Rule 3
Constitution of Indias. 226, s. 227
Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977

Subjects

Letters Patent AppealArticle 226Article 227maintainabilityBombay High Court Rulesconstitutional jurisdictionwrit petitiontribunal order

Judgment

[2008] 13 S.C.R. 804

A SHAHU SHIKSHAN PRASARAK MANDAL AND ANR.
v.
LATA P. KORE & ORS.
(Civil appeal No. 5801 of 2008)
SEPTEMBER 23, 2008
B
[DR. ARIJIT PASAYAT AND DR. MUKUNDAKAM
SHARMA, JJ.]

Letters Patent Appeal - Appeal against dismissal of writ
c petition - Maintainability of - Held: Though petition filed un-
der Article 226, from the grounds raised in the writ petition it is
clear that petition is not only under Article 227 but also under
Article 226 - J;he petition justified the appellant filing applica-
tion both under Articles 226 and 227 - However, High Court
while dismissing LPA did not consider the issues as also the ..- .
D
applicable provisions - Thus, matt~r remitted to High Court -
Constitution of India, 1950 - Article 226 and 227.
Aggrieved, appellant filed writ petition challenging
the order of the tribunal. ThEt Single Judge of High Court
E dismissed the petition on the ground that the same was
not maintainable. Appellant then filed Letters Patent Ap-
peal which was also dismissed. Hence the present ap-
peal.
Allowing the appeal and remitting the matter, the
F Court
HELD: 1.1 In the instant case, apart from the fact that
the petition is labeled under Article 226 of the Constitu-
tion of India, it is clear that the grounds raised in the peti-
G
tion suggest that the petition is not only under Article 227
. but also _uoC,ler Article 226 of the Constitution. It is to be
seen that in the grounds raised against the order of the
·· tribunal, it is specifically suggested that the order passed
by the tribunal was arbitrary, unreasonable, unjust and
H 804
SHAHU SHIKSHAN PRASARAK MANDAL &ANR. v. 805
LATA P. KORE & ORS.

perverse. After reading the writ petition it is clear that the A
contentions raised and the facts stated in the petition jus-
tify the appellant to file an application both under Articles
226 and 227 of the Constitution of India. [Para 12] [8118-E]
1,2 The effect of the provisions and the decisions
referred to does not appear to have been considered by B
the High Court while holding that the Letters Patent Ap-
peal was not maintainable. Therefore, the matter is remit-
ted to the High Court to consider the issues, the appli-
cable proVlsions and the decisions afresh. [Paras 1~ and
14] [811-E-F] C
Umaji Keshao Meshram v. Radhikabai, Widow of
Anandrao Banap11rkar and Anr. 1986 Supp. SCC 401;
Sushilabai Laxminarayan Mud/iyar and' Ors. v. Niha/chand
Waghajibhai Shaha and Ors. 1993 Supp. (1) SCC 11; Mavji D
C. Lakum v. Cehtral Bank of India 2008(7) SCALE 32 - re-
ferred to.
Case Law Reference
1986 Supp. SCC 401 Referred to. Para 6, 10
E
1993 Supp. (1) SCC 11 Referred to. Para 6, 10
2()08(7) SCALE 32 Referred to. Para 10
CIVILAPPELLATE JURISDICTION: Civil Appeal No. 5801
of 2008
F
From the final Judgment and Order dated 11 /12/2003 and
13/1/2005 of the High Court of Judicature at Bombay in W.P;
No. 6195/2003 and LP.A. (Stamp) No. 10381/2004 respec-
tively
Siddharth Bhatnagar, Pawan KUl'harBansal and T. Mahipal G
for the Appellants.·
Makarand D, Adkar, Vijay Kumar, Vishwajit Singh, Arun
,_ Pedneker, Sanjay V. Kharde, Asha G. Nair and V.N. Raghupathy
for the Respondents.
H
806 SUPREME COURT REPORTS [2008] 13 S.C.R.

A The Judgment of the Court was delivered by
Dr. ARIJIT PASAYAT, J. 1. Leave granted.
2. Challenge in this appeal is to the order of a Division
Bench of the Bombay High Court dismissing the Letters Patent
B Appeal filed by the appellant. Writ Petition filed by the appellant
was dismissed on the ground that the same was not maintain-
able.
3. Learned counsel for the appellant submitted that the im-
pugned ord1:lr of the Division Bench is clearly unsustainable.
C Reference is made to Rules 3 & 18 of the Bombay High Court
Appellate Side Rules, 1960 (in short the 'Rules') with the
amended Letters Patent of the High Court of Bombay, 1865 (in
short the 'Letters Patent'). It is submitted that the Division Bench
did not take note of what has been stated by several judgments
D of this Court.
4. Learned counsel for the respondent on the other hand
supported the impugned judgment of the High Court.
5. Rules 3, 18(41) and the proviso 18(44) read as follows:
E "3. Appeal to be placed before Division Bench for
admission -Appeals under Clause 15 of the Letters Patent
shall be placed for admission before a Division Bench.
18. Single Judge's powers to finally dispose of applica-
F tions under Article 226 or 227 - Notwithstanding anything con-
tained in Rule 1,4 and 17 of this Chapter applications under
Article 226 or under Article 227 of the Constitution for applica-
tions styled as applications under Article 227 of the Constitu-
tion read with Article 226 of the Constitution arising out of:
G xxx
(41) The1 order passed under the Maharashtra Employees
of Private Schools (Conditions of Service) Regulation
Act, 1977.
H (44) Orders passed by t~e different Committees
-<(
SHAHU SHIKSHAN PRASARAK MANDAL & ANR. v. 807
LATA P. KORE & ORS. [DR. ARIJIT PASAYAT, J.]
constituted by the State Government for verification A
of the claims of Scheduled Cast and Scheduled Tribe
candidates, may be heard and finally disposed or by
a single judge to be appointed in this behalf by the
Chief Justice.
Provided when the matter in dispute is or relates to B
the challenge to the validity of any statute or any rules
or regulations made thereunder, such applications
shall be heard and disposed off by a Division Bench
to be appointed by the Chief Justice."
c
6. In Umaji Keshao Meshram v. Radhikabai [1986 Supp.
SCC 401], Sushilabai Laxminarayan Mudliyar & Ors. v.
Nihalchand Waghajibhai Shaha & Ors. [1993 Supp. (1) $CC
11] and Mavji C. Lakum v. Central Bank of India [2008(7)
.. .., SCALE 32] similar questions were considered.
D
7. In Sushilabai's case (supra) it was noted at paragraph
4 as follows:
"The Full Bench of the Bombay High Court wrongly

- understood the above Umaji Kesho Meshram case
(supra). In Umaji case (supra) it was clearly held that
where the facts justify a party in filing an application either
under Article 226 or 227 of the Constitution of India and
E

the party chooses to file his application under both these
articles in fairness of justice to party and in order not to
deprive him of valuable right of appeal the Court ought to F
treat the application as being made under Article 226,
and if in deciding the matter, in the final order the Court
• gives ancillary directions which may pertain to Article 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 G
substantial part of the order sought to be appealed against
is under Article 226. Rule 18 of the Bombay High Court
Appellate Side Rules read with clause 15 of the Letters
Patent provides for appeal to the Division Bench of the
High Court from a judgment of the learned Single Judge H
808 SUPREME COURT REPORTS [2008] 13 S.C.R. 'r

A passed on a writ petition under Article 226 of the
Constitution. In the present case the Division Bench was.
cleiarly wrong in holding that the appeal was not
maintainable against the order of the learned Single

B
Judge. In these circumstances we set aside the impugned
order of the Division Bench and direct that the Letters
..
P~tent Appeal filed against the judgment of the learned
Single Judge would now be heard and decided on merits.
In view of the fact that it is an old matter we request the
High Court to decide the Letters Patent Appeal within six
c months. It is further directed that till the final disposal of the
Letters Patent Appeal the operation of the order of the
Single Judge shall remain stayed. The appeals are allowed
in part with no order as to costs."
8. In Umaji's case (supra) at paragraph107 it was noted
D as follows: . ~.

"Petitions are at times filed both under Articles 226 and
227 of the Constitution . The case of Hari Vishnu Karnath
v. Syed Ahmad lshaque[AIR 1955 SC 233] before this
Court was of such a type. Rule 18 provides that where
E 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 ~
F 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 Article 226 or
2~~7 of the Constitution, and the party chooses to file his
•
application under botl}Jhese articles, in fairness and justice
G to such party and in ·order not to deprive him of the valuable
riuht of appeal the court ought to treat the application as
being made under Article 226, and if in deciding the matter,
in the final order the court gives ancillary diractioris which
"
may pertain to Article 227, this ought not to be held to
H deprive a party of the right of appeal under clause 15 cf
-~
...., SHAHU SHI KS HAN PRASARAK MANDAL & ANR. v. 809
-·
' LATA P. KORE & ORS. [DR. ARIJIT PASAYAT, J.]
the Letters Patent where the substantial part of the order A
sought to be appealed against is under Article 226. Such
was the view taken by the Allahabad High Court in Aida/
Singh v. Karan Singh [AIR 1957 All 414) and by the Punjab
-I,
j}., High Court in Raj Kishan Jain v. Tutsi Dass [AIR 1959
Punj 291) and Barham Dutt v. Peoples' Cooperative B
Transport Society Ltd., New Delhi [AIR 1961 Punj 24]
and we are in agreement with it."
9. In Mavji's case (supra) this Court inter alia noted as
follows:
"12. At the outset we shall consider the contention as to
c
whether the Letters Patent Appeal was maintainable
against the ·order of the learned Single Judge. It was
....contended by the counsel for the respondent-bank that
. ·~ the appeal was not maintainable since the learned Single
D
Judge had exercised his jurisdiction under Article 227 of
the Constitution of India and, therefore, there was no
question of Letters Patent Appeal being maintainable
against the same. We, therefore, went through the Special

-
.:'-'.
Civil Application, a copy of which is the part of the
paperbook. The said writ petition clearly mentions on the E
very first page that the'"" writ petition was being filed under
Article 226 of the Constitution of India. Again para 10 of
the writ petition mentions as under: ··
~
"Being aggrieved by the order passed by the Industrial F
Tribunal, the petitioner begs to approach this Hon'ble
court under Article 226 of the Constitution of India
challenging the award on the following arnongst other
grounds .... "
Ground (iv) on the same page says: G

.. "That the order passed by the Tribunal is arbitrary,
unreasonable, unjust and perverse."
Even prayer clause in para 15 is as under:
H
810 SUPREME COURT REPORTS [2008] 13 S.C.R. ,.....

A "That by appropriate writ, direction and order, the impugned
order of Industrial Tribunal (Central) Rajkot atAnnexure B
be quashed and/or set aside."
10. All this suggests that the writ petition was not only un-
der Article 227 of the Constitution of India but there is a specific
B mention of Article 226. In a reported decision of this Court in "
Sushilabai Laxminarayan Mudliyar & Ors. V. Nihalchand
Waghajibhai Shaha and others [(1993) Supp. 1 SCC 11] a
similar question fell for consideration. In para 4 of the said judg-
ment this Court observed:
c
"The Full Bench of the Bombay High Court wrongly
understood the above Umaji Kesho Meshram case. In
Umaji case it was clearly held that where the facts justify
a party in filing an application either under Article 226 or
227 of the Constitution of India and the party chooses to
D ~

file his application under both these articles in fairness of
justice to party and in order not to deprive him of valuable
right of appeal the court ought to treat the application as
being made under Article 226, and if in deciding the matter,
in the final order the court gives ancillary directions which
E may pertain to Article 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 Article 226. Rule
18 of the Bombay High Court Appellate Side Rules read
F with clause 15 of the Letters Patent provides for appeal to
the Division Bench of the High Court from a judgment of
the learned Single Judge passed on a writ petition under
Article 226 of the Constitution. In the present case the
Division Bench was clearly wrong in holding that the appeal
G was not maintainable against the order of the learned
Single Judge. In these circumstances we set aside the
impugned order of the Division Bench and direct that the -,
Letters Patent Appeal filed against the judgment of the
learned Single Judge would not be heard and decided on
H merits .... "
.,
1

SHAHU SHIKSHAN PRASARAK MANDAL &ANR. v. 811
LATA P. KORE & ORS. [DR. ARIJIT PASAYAT, J.]

These observations were made by this Court after taking A
into consideration the observations made in Umaji Keshao
Meshram & Ors. V. Radhikabai, Widow of Anandrao
Banapurkar & Anr. [1986 (Supp) SCC 401].
12. In the present matter apart from the fact that the peti-
tion is labeled under Article 226 of the Constitution of India, it is B
clear that the grounds raised in the petition suggest that the
petition is not only under Article 227 but also under Article 226
of the Constitution. It is to be seen that in the grounds raised
against the order of the Tribunal, it is specifically suggested that
the order passed by the Tribunal was arbitrary, unreasonable, C
unjust and perverse. The further complaint made against the
Tribunal's order pertain to failure on the part of the lribunal to
appreciate certain facts and eventualities thereby complaining
non application of mind on the part of the Tribunal. Complaint
has also been made against the approach of the Tribunal and it D
is suggested that the said approach was perverse, After read-
ing the writ petition we are convinced that the contentions raised
and the facts stated in the petition justify the respondent herein
to file an application both under Articles 226 and 227 of the
Constitution of India." E
13. The effect of the provisions and the decisions referred
to above does not appear to have been considered by the High
Court while holding that the Letters Patent Appeal was not main-
tainable.
F
14. We, therefore, remit the matter to the High Court to con-
sider the issues, the applicable provisions and the decisions afresh.
15. We make it clear that we have not expressed any opin-
ion on merits as regard the maintainability. Since the matter is
pending since long, we request the High Court to dispose of G
the matter as early as practicable preferably by the end of 2008.
~ 16. Appeal is allowed to the aforesaid extent. Costs made
easy.
N.J. Appeal allowed. H