Case: Shalini Shyam Shetty  Vs. Rajendra Shankar Patil


Decision reasoning: 0[ds]63. In the facts of the present case we find that the petition has been entertained as a writ petition in a dispute between landlord and tenant amongst private parties64. It is well settled that 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 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 any person, but the person against whom writ will be issued must have some statutory or public duty to perform65. Reference in this connection may be made to the Constitution Bench decision of this Court in the case of Sohan Lal vs. Union of India and another, reported in AIR 1957 SC 529 66. The facts in Sohan Lal (supra) are that Jagan Nath, a refugee from Pakistan, filed a writ petition in the High Court of Punjab against Union of India and Sohan Lal alleging unauthorized eviction from his residence and praying for a direction for restoration of possession. The High Court directed Sohan Lal to restore possession to Jagan Nath. Challenging that order, Sohan Lal approached this Court. The Constitution Bench of this Court accepted the appeal and overturned the verdict of the High Court68. These principles laid down by the Constitution Bench in Sohan Lal (supra) have not been doubted so far69. Subsequently in some other cases question arose whether writ will lie against a private person. In Engineering Mazdoor Sabha & another vs. Hind Cycles Ltd., reported in AIR 1963 SC 874 , it was held that an arbitrator appointed under Section 10A of Industrial Disputes Act is not a private arbitrator even though he cannot be equated with a tribunal to be amenable under Article 136 of the Constitution of India. The Court held that in discharging his duties as an arbitrator, the arbitrator is clothed with some trappings of a Court and a writ of certiorari would be maintainable against him. So even though an arbitrator, acting under Section 10A of the Industrial Disputes Act, is a private individual, he discharges public function. So the ratio in the Constitution Bench decision in Engineering Mazdoor Sabha (supra) is consistent with the decision in Sohan Lal (supra)70. It is only a writ of Habeas Corpus which can be directed not only against the State but also against private person. Justice Hidaytullah (as his Lordship then was) on behalf of a Bench of this Court stated the principle as the writ of Habeas Corpus issues not only for release from detention by the State but also for release from private detention. (see AIR 1964 SC 1625 at 1630)72. Therefore, a private person becomes amenable to writ jurisdiction only if he is connected with a statutory authority or only if he/she discharges any official duty73. In the instant case none of the above features are present, even then a writ petition was filed in a pure dispute between landlord and tenant and where the only respondent is the plaintiff landlord. Therefore, High Court erred by entertaining the writ petition. However, the petition was dismissed on merits by a rather cryptic order74. It has repeatedly been held by this Court that a proceeding under Article 226 of the Constitution is not the appropriate forum for adjudication of property disputes or disputes relating to title. In Mohammed Hanif vs. The State of Assam (1969 (2) SCC 782 ) a three Judge Bench of this Court, explaining the general principles governing writ jurisdiction under Article 226, held that this jurisdiction is extraordinary in nature and is not meant for declaring the private rights of the parties. (See para 5, page 786 of the report)75. In coming to the aforesaid conclusion in Hanif (supra), this Court referred to the Constitution Bench decision in T.C. Basappa vs. T. Nagappa and another (AIR 1954 SC 440 )76. Following the aforesaid principles in Hanif (supra), this Court in M/s. Hindustan Steel Limited, Rourkela vs. Smt. Kalyani Banerjee and others ((1973) 1 SCC 273 ) held that serious questions about title and possession of land cannot be dealt with by writ court. In formulating these principles in Kalyani Banerjee (supra), this Court relied on Constitution Bench decision in Sohan Lal (supra) (See paragraph 16 page 282 of the report). Again in State of Rajasthan vs. Bhawani Singh & others (1993 Supp. (1) SCC 306) this Court held that a writ petition is not the appropriate forum to declare a persons title to property. (see para 7, page 309 of the report). Subsequently, again in the case of Mohan Pandey & another vs. Usha Rani Rajgaria & others reported in (1992) 4 SCC 61 ,  this Court held that a regular suit is the appropriate remedy for deciding property disputes between private persons and remedy under Article 226 is not available to decide such disputes unless there is violation of some statutory duty on the part of a statutory authority. (See para 6, page 63 of the report)77. Following the aforesaid ratio in Mohan Pandey (supra), this Court again in Prasanna Kumar Roy Karmakar vs. State of W.B and others ((1996) 3 SCC 403 ), held that in a dispute between the landlord and tenant, a tenant cannot be evicted from his possession by a writ court. Again in the case of P.R. Murlidharan & others vs. Swami Dharmananda Theertha Padar & others ((2006) 4 SCC 501 ), this Court held that it would be an abuse of the process to approach a writ court in connection with dispute on questions of title for deciding which civil court is the appropriate forum78. However, this Court unfortunately discerns 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 in a case of money decree and in various other cases where disputed questions of property are involved, writ 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 petitions79. We would like to make it clear that in view of the law referred to above 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 be shown, that a private individual is acting in collusion with a statutory authority80. We may also observe that in some High Courts there is tendency of entertaining petitions under Article 227 of the Constitution by terming them as writ petitions. This is sought to be justified on an erroneous appreciation of the ratio in Surya Dev (supra) and in view of the recent amendment to Section 115 of the Civil Procedure Code by Civil Procedure Code (Amendment) Act, 1999. It is urged that as a result of the amendment, scope of Section 115 of CPC has been curtailed. In our view, even if the scope of Section 115 CPC is curtailed that has not resulted in expanding High Courts power of superintendence. It is too well known to be reiterated that in exercising its jurisdiction, High Court must follow the regime of law81. As a result of frequent interference by Honble High Court either under Article 226 or 227 of the Constitution 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 justice82. This Court hopes and trusts that in exercising its power either under Article 226 or 227, Honble High Court will follow the time honoured principles discussed above. 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.