1 lpa254.11gp.sxw ssm IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CIVIL JURISDICTION LETTERS PATENT APPEAL NO. 254 OF 2011 IN WRIT PETITION NO. 7012 OF 2008 WITH CIVIL APPLICATION NO. 316 OF 2011 IN LETTERS PATENT APPEAL NO. 254 OF 2011 M/s. New Heavens Pvt. Ltd. ...Appellant. Vs. The State of Maharashtra & Ors. ...Respondents. Mr. Rafiq Dada, Sr. Advocate i/by Mr. K.S. Dewal for the Appellant. Mr. S.R. Nargolkar, Additional G.P. for Respondent Nos. 1 and 2. Mr. Aspi Chinoy, Sr. Advocate with Mr. Sharan Jagtiani and Ms. Sheetal Dasgupta i/by M/s. Mehta & Girdharilal for Respondent No.3. CORAM :- D.K DESHMUKH AND ANOOP V. MOHTA, JJ. DATE :- 11 OCTOBER, 2011. P.C. :- By this Appeal filed under Clause 15 of the Letters Patent the Appellant challenges order dated 14/15 July 2011 passed by the learned Single Judge of this Court in Writ Petition No. 7012 of 2008. That Writ Petition was filed by the present Appellant. The learned Single Judge has rejected that Petition. A preliminary objection to the 2 lpa254.11gp.sxw ssm maintainability of the Appeal was raised on behalf of the Respondents. According to the Respondents the present Appellant had filed that Petition under Article 227 of the Constitution of India. It is pointed out that in the cause title the Appellant has stated “In the matter of provisions of Article 227 of the Constitution of India.” It is also pointed out that paragraph 26 of the Petition reads as under:- “26. Petitioners have no other alternative, equally efficacious and/or speedy remedy but to approach this Hon’ble High Court and as such the present Writ Petition is filed in this Hon’ble High Court under Article 227 of the Constitution of India.” 2 According to the Respondents as the Appellant had filed this Petition under Article 227 of the Constitution of India, which has been rejected by learned Single Judge, an Appeal challenging that order filed under Clause 15 of the Letters Patent is not maintainable. Reliance on behalf of the Respondents in support of the objection is placed on a Judgment of the Special Bench of this Court in the case of State of Maharashtra Vs. Kusum Charudutt Bharma Upadhye, 1981 Mh.L.J. 93, the Judgment of the Supreme Court in the case of Umaji Keshao Meshram & Ors. Vs. Radhikabai, 1986 (Supp) S.C.C. 401, a Judgment of the Supreme Court in the case of Sushilabai 3 lpa254.11gp.sxw ssm Laxminarayan Mudliyar and Ors. Vs. Nihalchand Waghajibhai Shaha & Ors. AIR 1992 S.C.C. 185. It is contended that when a Petitioner chooses to file Petition under Article 227 of the Constitution of India, in case that Petition is rejected, an Appeal against that order under Clause 15 is not maintainable. 3 The learned counsel appearing for the Appellant, on the other hand, relied on a Judgment of the Full Bench of this Court to which one of us (Mr. Justice Anoop V. Mohta) is a party in the case of Advani Oerlikon Ltd. Vs. Machindra Govind Makasare & Ors. 2011 (2) Mh.L.J. 916. The learned counsel also invited our attention to the Judgment of the Supreme Court in the case of State of Madhya Pradesh and Ors. Vs. Visan Kumar Shiv Charan Lal (2008) 15 S.C.C. 233 and Judgment of the Supreme Court in the case of M.M.T.C. Limited Vs. Commissioner of Commercial Tax & Ors. (2009) 1 S.C.C. 8. 4 Perusal of the Judgment of the Special Bench of this Court which was a Bench consisting of 5 learned Judges of this Court shows that one of the questions that was considered by the Special Bench was- “Whether an appeal would lie under Clause 15 of the Letters Patent from 4 lpa254.11gp.sxw ssm the judgment of the learned Single Judge of the High Court in a Petition filed under Article 227 of the Constitution of India”. That question has been answered by the Special Bench and the Special Bench has held “An appeal does not lie under Clause 15 of the Letters Patent from the Judgment of a Single Judge of the High Court in a proceeding under Article 227 of the Constitution of India”. The Special Bench in the summary of the conclusion in paragraph 25 has observed “An appeal against the judgment of a Single Judge in a proceeding under Article 227 of the Constitution is expressly barred by Clause 15 of the Letters Patent”. In paragraph 36 of the summary, the Special Bench has observed “The case of Shankar Naroba Salunke and Ors. Vs. V. Gianchand Lobhachand Kothari and Ors. was wrongly decided except for the conclusion reached in that case that no appeal lies under Clause 15 of the Letters Patent against the judgment of a Single Judge of the High Court in a proceeding under Article 227 of the Constitution”. 5 Perusal of the Judgment of the Supreme Court in the case of Umaji (Supra) shows that a Petition under Article 227 of the Constitution of India was filed by the first Respondent before the High Court. That Petition was heard by the learned Single Judge of this 5 lpa254.11gp.sxw ssm Court who allowed the Petition. The Appellant before the Supreme Court, therefore, filed Appeal under Clause 15 of the Letters Patent before a Division Bench of the High Court. The Division Bench of the High Court dismissed that Appeal as not maintainable relying on the Judgment of the Full Bench of the Bombay High Court in Shankar Naroba Salunke Vs. Gyanchand Lobhachand Kothari. It may be noted here that by Judgment of the Special Bench in the case of Kusum referred to above, it was already held that the case of Shankar Naroba Salunke was wrongly decided by the Full Bench. In its judgment in Umaji’s case (Supra), the Supreme Court examined the law again and so far as the present controversy is concerned, observed in paragraph 111 thus:- “111. The Petition filed by the appellants before the Nagpur Bench of the Bombay High Court was admittedly under Article 227 of the Constitution and under the rules of the High Court it was heard by a Single Judge. Under Clause 15 of the Letters Patent of that High Court in intra-court appeal against the decision of the learned Single Judge was expressly barred. The appeal filed by the appellants from the decision of the Single Judge to the Division Bench was, therefore, rightly dismissed as being not maintainable.” 6 Thus, the Supreme Court clearly held that when a Petition is filed under Article 227 of the Constitution of India and is heard by the 6 lpa254.11gp.sxw ssm learned Single Judge against the order passed by the learned Single Judge in such a Petition Appeal under Clause 15 of the Letters Patent is not maintainable. 7 So far as the Judgment of the Full Bench in the case of Adwani Oerlikon Ltd. (Supra) is concerned, perusal of paragraph 2(9) of that judgment shows that the question which was relevant for our present purpose as referred was “If the Petition is filed only under Article 227 and the order passed therein which amounts to judgment is passed in favour of the Petitioner, whether or not it is open for the respondent in the petition to challenge the said order under Clause 15 of the Letters Patent contending that though the Writ Petition was one filed under Article 227, it was also was one under Article 226 as facts justify or it ought to have been filed under Article 226 only and, hence, the Letters Patent Appeal is maintainable against an order passed thereon? 8 This question has been answered by the Full Bench after considering various judgments of the Supreme Court including the Judgment of the Supreme Court, in the case of Umaji (Supra) in paragraph 20 (9) as under:- “Re : 9 : In a situation where a petition is filed under 7 lpa254.11gp.sxw ssm Article 227 of the Constitution and judgment is rendered in favour of the Petitioner, recourse to an appeal under Clause 15 of the Letters Patent is not barred to the Respondent before the Single Judge merely on the ground that the petition was under Article 227. In State of Madhya Pradesh Vs. Visan Kumar Shiv Charanlal (supra), the appeal before the Division Bench was filed by the Respondent to the proceedings before the Single Judge in a petition which had been instituted under Article 227. Accepting the submission that a nomenclature is of no consequence and it is the nature of the reliefs sought and the controversy involved which determine which Article is applicable, the Supreme Court held that the appeal before the Division Bench was maintainable. A similar position arose in the decision of the Supreme Court in M.M.T.C. Vs. Commissioner of Commercial Tax (supra). The Division Bench of the High Court had held that since the Petition before the Single Judge was under Article 227 of the Constitution, an appeal at the behest of the Respondent to the petition was not maintainable. The Supreme Court held that the High Court was not justified in holding that the Letters Patent Appeal was not maintainable since the High Court did not consider the nature of the controversy and the prayers involved in the Writ Petition.” 9 The full Bench thus held that if a Petition is filed under Article 227 and in that Petition if an order is made adverse to the interest of the Respondents, it is open to the Respondents in that Petition to maintain an Appeal under Clause 15 by pointing out to the Appeal Court that the Petitioner in that Petition could have filed the Petition for the same relief that was claimed in the Petition under Article 226 8 lpa254.11gp.sxw ssm of the Constitution of India. The Judgment of the Full Bench in Adwani’s case does not consider the question whether the Petitioner in a Petition filed under Article 227 of the Constitution of India, on his Petition being rejected can file an Appeal under Clause 15 of the Letters Patent. In our opinion, that question is no more debatable because of the Judgment of the Supreme Court in Umaji’s case. So far as the Judgment of the Supreme Court in the case of State of Madhya Pradesh Vs. Visan Kumar Shiv Charan Lal (Supra) is concerned, perusal of that judgment does not show that in that case Writ Petition was filed only under Article 227 and whether the decision in that Petition went against the Petitioner and that Petitioner filed Appeal and that was held to be maintainable. It is clear from the Judgment of the Supreme Court in Umaji’s case that an Appeal against an order passed in a Petition filed under Article 227 is expressly barred. Therefore, in our opinion, it cannot be said that the Supreme Court in its Judgment in the case of State of Madhya Pradesh Vs. Visan Kumar Shiv Charan Lal (Supra) has held that such an Appeal would be maintainable at the instance of the Petitioner who files Petition under Article 227. Same is the position in relation to the Judgment of the Supreme Court in M.M.T.C. Limited Vs. Commissioner of Commercial Tax & Ors.(Supra). What is further 9 lpa254.11gp.sxw ssm pertinent to be noted is that when the Petitioner decides to file the Petition challenging an order, it is for the Petitioner to consider whether that order can be challenged in a Petition filed under Article 226 or a Petition filed under Articles 226 and 227 or in a Petition filed under Article 227 of the above. When the Petition was filed the Petitioner knew that it is well settled law that if the Petition is filed under Article 227 and if the decision in the Petition goes against the Petitioner, he does not have the remedy of filing a Letters Patent Appeal against that order. With this full knowledge if the Petitioner makes a choice and elects to file his Petition under Article 227 of the Constitution of India, in our opinion, he cannot be permitted to resile from his choice and then say at the appellate stage that though he has mentioned only under Article 227 in his Petition, his Petition could be considered as a Petition filed under Article 226 also. If such a course of action is permitted, in our opinion, it will be unfair to the Respondents in the Petition. 10 Considering the settled law, therefore, in our opinion as the Petitioner had consciously chosen to file his Petition under Article 227, he cannot be permitted to now claim that his Petition could be considered as a Petition under Article 226, in any case a Petition under 10 lpa254.11gp.sxw ssm Article 226 read with Article 227. In this view of the matter, therefore, we have to uphold the objection raised to the maintainability of the Appeal. The Appeal is not maintainable and is rejected. 11 At this stage the request is made by the learned Senior Counsel appearing on behalf of the Appellant that the interim order which is presently operated should be continued for a period of six weeks. The request is opposed by the Respondents. According to the Respondents, as this Court has held that the Appeal is not maintainable, this Court will not have the power to continue the operation of the interim order. No doubt, there is a substance in the objection that is raised on behalf of the Respondents, but in our opinion as the interim order has been operating even during when the proceedings were pending before the learned Single Judge, in our opinion, therefore, we in the interest of justice continue the operation of the interim order for a period of six weeks. It is accordingly so ordered. 12 Civil Application No. 316 of 2011 is also disposed of. (ANOOP V. MOHTA, J.) (D.K.DESHMUKH, J.)