UMAJI KESHAO MESHRAM Vs. RADHIKABAI WIDOW OF ANANDRAO BANAPRKAR

JUDGEMENT

(1.) Unfamiliar as I am with the history, tradition and the lore of the city and the High Court of Bombay, I content myself by agreeing with the conclusion of my learned brother that no appeal under Cl. 15 of the Letters Patent lies to the High Court against the order of a single Judge of the High Court exercising jurisdiction under Art. 227 of the Constitution, no less and no more. I do not have any doubt that the reference to S. 107 of the Government of India Act, 1915, in Clause 15 of the Letters Patent must necessarily be read as a reference to Art. 227 of the Constitution. So read an appeal under Cl. 15 is clearly not maintainable against an order made in exercise of the power under Art. 227. This is the view taken by all the High Courts in India except the High Court of Bombay, where alone opinion has not been unanimous.

(2.) The question which falls for determination in this appeal is "whether an appeal lies under Cl. 15. of the Letters Patent of the Bombay High Court to a Division Bench of two. judges of that High Court from the judgment of a single Judge of that High Court in a petition filed under Art. 226 or 227 of the Constitution of India -

(3.) The facts which have given rise to this Appeal by Special Leave granted by this Court need to be briefly stated. The First Respondent, Radhikabai, is a widow. She is the owner of three fields situate at Mouza Khed-Makta, Tahsil Brahmapuri, District Chandrapur. Kesheo, the father of the Appellants, was the tenant of the said fields The First Respondent filed an application under S. 36 (2) of the Bombay Tenancy and Agricultural Lands Vidarbha Region) Act, 1958 (Bombay Act No. XCIX of 1958) , read with S. 39 of that Act for possession of the said fields on the ground that she wanted them for personally cultivating them. The said application was allowed and she took possession of the said fields. On the ground that instead of personally cultivating the said fields the First Respondent had leased them to the Second Respondent, the Appellants filed an application under S. 52 of the Tenancy Act claiming that they had become entitled to have the possession of the said fields restored to them. It was the case of the First Respondent that the Second Respondent was working in the said fields as her servant on a monthly salary. The Appellants' said application was allowed by the Additional Tahsildar, Brahmapuri. The First Respondent's appeal against the said order was allowed by the Sub-Divisional Officer, Brahmapuri. The Appellants thereupon went in revision to the Maharashtra Revenue Tribunal at Nagpur and the Tribunal allowed the said revision application. Thereupon the First Respondent filed a petition under Art. 227 of the Constitution of India before the Nagpur Bench of the High Court of Bombay being Special Civil Application No. 1392 of 1974. By reason of the provision of R. 18 of Chapter XVII of the Bombay High Court Appellate Side Rules, 1960, the said petition was heard by a learned single Judge of the said High Court who allowed the petition, set aside the order of the Tribunal and restored the order of the Sub-Division Officer. Against this judgment and order the Appellants filed an appeal under Cl. 15 of the Letters Patent to a Division Bench of the Bombay High Court, Nagpur Bench. The Division Bench dismissed the said appeal as not being competent in view of the decision of a Full Bench of the Bombay High Court Nagpur Bench, in Shankar Naroba Salunke v. Gyanchand Lobhachand Kothari. Letters Patent Appeals Nos. 3, 10, 11 and 17 of 1979 and 34 of 1980 decided on 3/09/1980. It is against the said order of the Division Bench that the present Appeal by Special Leave has been filed by the Appellants.