Gujarat High Court
Revaben Wd/O Ambalal vs Vinubhai Purshottambhai on 15 January, 2013
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya
REVABEN WD/O AMBALAL MOTIBHAIV/SVINUBHAI PURSHOTTAMBHAI PATEL C/LPA/1220/2011 CAV JUDGEMNT
final-certiorari/cavfolder IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL NO. 1220 of 2011 In SPECIAL CIVIL APPLICATION NO. 12364 of 2008 With CIVIL APPLICATION NO.
8627 of 2011 In LETTERS PATENT APPEAL NO. 1220 of 2011 With LETTERS PATENT APPEAL NO. 894 of 2012 In SPECIAL CIVIL APPLICATION NO. 576 of 2009 With CIVIL APPLICATION NO.
7470 of 2012 In LETTERS PATENT APPEAL NO. 894 of 2012 With LETTERS PATENT APPEAL NO. 895 of 2012 In SPECIAL CIVIL APPLICATION NO. 8193 of 2008 With CIVIL APPLICATION NO.
7472 of 2012 In LETTERS PATENT APPEAL NO. 895 of 2012 With LETTERS PATENT APPEAL NO. 1219 of 2011 In SPECIAL CIVIL APPLICATION NO. 12445 of 2008 With CIVIL APPLICATION NO.
8621 of 2011 In LETTERS PATENT APPEAL NO. 1219 of 2011 FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR.BHASKAR BHATTACHARYA And HONOURABLE MR.JUSTICE J.B.PARDIWALA ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ?2
To be referred to the Reporter or not ?` 3 Whether their Lordships wish to see the fair copy of the judgment ?4
Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?5
Whether it is to be circulated to the civil judge ?
========================================================= REVABEN WD/O AMBALAL MOTIBHAI & ORS.
Versus VINUBHAI PURSHOTTAMBHAI PATEL & ORS.
================================================================ Appearance:
LPA NO.1220 OF 2011 WITH C.A. NO. 8627 OF 2011 MRS KETTY MEHTA, ADVOCATE with MS ARCHANA R ACHARYA, for appellant MR AJ PATEL with MR SHITAL PATEL for respondent No.9 MR MIHIR THAKORE, SR. COUNSEL withMR PARTHIV B SHAH, ADVOCATE for the Respondent No. 10 MS KRINA CALLA, ASST. GOVT. PLEADER for the Respondents No. 11 - 12 RULE SERVED BY DS for the Respondents No. 1 8 LPA NO. 1219 OF 2011 WITH C.A. NO. 8621 OF 2011 MR MIHIR THAKORE, SR. COUNSEL with MR. PARTHIV B SHAH, ADVOCATE for the appellant MS KRINA CALLA, ASST. GOVT. PLEADER for the Respondents No. 1, 19 MRS KETTY MEHTA, ADVOCATE with MS ARCHANA R ACHARYA for respondents No.9 to 16 MR AJ PATEL with MR SHITAL PATEL for respondent No.18 RULE SERVED by DS respondents No. 2 to 8 and 17 LPA NO. 894 of 2012 with CA 7470 of 2012 with LPA NO. 895 of 2012 with CA 7470 of 2012 and CA 7472 of 2012 MR ANSHIN H DESAI for appellant MR U I VYAS for respondent No.1 NOTICE NOT RECEIVED BACK FOR respondent No.2 NOTICE served for respondent No.3 ================================================================ CORAM:
HONOURABLE THE CHIEF JUSTICE MR.BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 15/01/2013 CAV JUDGEMNT (PER : HONOURABLE THE CHIEF JUSTICE MR.BHASKAR BHATTACHARYA)
1. All these Letters Patent Appeals were heard analogously for the purpose of deciding a preliminary objection raised by the respondents that these appeals are not maintainable under Clause 15 of the Letters Patent in view of the fact that the learned Single Judge really exercised jurisdiction under Article 227 of the Constitution of India. According to the learned counsel appearing on behalf of the respondents, if a learned Single Judge of this Court, in substance, exercises jurisdiction under Article 227 of the Constitution of India, the same is not appealable under Clause-15 of the Letters Patent. According to those learned counsel, only if, the learned Single Judge exercises original jurisdiction under Article 226 of the Constitution of India, in that event, a Letters Patent Appeal under Clause-15 of the Letters Patent is maintainable and not otherwise.
2. Before we proceed to decide the aforesaid question, it will be profitable to refer to the facts in which these four Letters Patent Appeals have been preferred.
2.1 LETTERS PATENT APPEAL NO. 1220 OF 2012:
This Letters Patent Appeal is at the instance of the unsuccessful applicants of Special Civil Application No. 12364 of 2008 and is directed against order dated June 14, 2011 passed by a learned Single Judge of this Court by which His Lordship dismissed the said Special Civil Application.
2.1.1 It may not be out of place to mention here that the above application was described as one under Articles 14, 19, 226, 227 and 300A of the Constitution of India, wherein an order dated August 21, 2008 passed by the Gujarat Revenue Tribunal in Revision Application No. TEN/BA/66/2008 was challenged. In the prayer portion of the said application, the applicant prayed for merely setting aside the order dated August 21, 2008 passed by the Gujarat Revenue Tribunal in the above Revisional Application by which the Tribunal allowed the same and set aside the order dated February 28, 2006 passed by the Deputy Collector [Land Reforms & Appeals], Anand in Tenancy Appeal No. 101 of 2005 and restored the order dated January 27, 2003 passed by the Mamlatdar & ALT, determining the purchase price of lands in Tenancy Case No. 26 of 1996. The learned Single Judge, in the order impugned at paragraph-2.0 has described the Special Civil Application No. 12364 of 2008 as one under Article 227 of the Constitution of India and in no part of the order, His Lordship referred to Article 226 of the Constitution of India or a writ of certiorari.
2.2 LETTERS PATENT APPEAL NO. 895 OF 2012:
By this Letters Patent Appeal, the appellants, who were the respondents no. 3 and 4 of Special Civil Application No. 8193 of 2008 challenged order dated April 19, 2012 passed by a learned Single Judge in the above application, whereby, the learned Single Judge, by a common order disposed of several Special Civil Applications. So far as Special Civil Application No. 8193 of 2008 was concerned, the same was allowed by the learned Single Judge and an order of status quo granted by Board of Nominee Court was quashed.
2.2.1 It may not be out of place to mention here that in the said Special Civil Application No. 8193 of 2008, the petitioners therein described the said application as one under Articles 226/227 of the Constitution of India and also under Articles 14 and 16 of the Constitution of India. In the prayer portion, the petitioners therein prayed for issue of the following relief in paragraph 3.12[B] among others:
[A[ xxx xxx xxx [B] This Hon ble Court may kindly be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other writ, order or direction quashing and setting aside the impugned order dated 19.4.2008 passed by the Gujarat Cooperative Tribunal in Revision Application No. 15 of 2008 and further be pleased to restrain the respondents Nos. 3 and 4 from construction work in the suit property and transferring, selling, or alienating in any manner the same, in the interest of justice.
xxx xxx xxx .
2.2.2 As it appears from the order impugned, the learned Single Judge at paragraph-1 of the judgment described those petitions as ones under Articles 226 and 227 of the Constitution of India, but while setting aside the order, did not mention as to whether His Lordship was really issuing mandamus or any other writ.
2.2.3 It may, however, be noted that in the above Special Civil Application No.8193 of 2008, the concerned tribunal was not a party respondent.
2.3 LETTERS PATENT APPEAL NO. 894 OF 2012:
This Letters Patent Appeal was filed by original respondent no.4 of the Special Civil Application No. 576 of 2009 and he challenged the same common order dated April 19, 2012 by which the learned Single Judge disposed of seven various Special Civil Applications, one of which was challenged in Letters Patent Appeal No. 895 of 2012.
2.3.1 Special Civil Application No. 576 of 2009, out of which this Letters Patent Appeal arises was described as one under Article 226/227 of the Constitution of India and the following payer was made in paragraph 11[B] of the said application:
[A] xxx xxx xxx [B] This Hon ble Court may kindly be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other writ, order or direction quashing and setting aside the impugned order dated 13.1.2009 passed by the Gujarat Cooperative Tribunal in Revision Application No. 163 of 2008 and further be pleased to restrain the respondents Nos. 2 from continuing the construction work in the suit property and transferring, selling or alienating in any manner the same, in the interest of justice xxx xxx xxx.
2.3.2 The learned Single Judge, while allowing the said Special Civil Application No. 576 of 2009 set aside the order of status-quo granted by the Board of Nominee Court and remanded the matter back to the Gujarat State Cooperative Tribunal with a direction to consider the revisional application afresh in the light of the order of His Lordship.
2.3.3 Thus, in the order impugned, there was no reference of any writ in the nature of certiorari. It may, however, be noted that the Gujarat Cooperative Tribunal was not made a party-respondent in the above Special Civil Application No. 576 of 2009.
2.4 LETTERS PATENT APPEAL NO. 1219 OF 2011:
In this Letters Patent Appeal, the original applicant of Special Civil Application No. 12445 of 2008 challenged the order dated June 14, 2011 passed by a learned Single Judge of this Court by which His Lordship dismissed the said application. In the cause-title, the said Special Civil Application was described as one under Articles 14, 19, 226 and 300A of the Constitution of India and in paragraph-8[A] of the said application, the following prayer was made:
[A] YOUR LORDSHIPS may be pleased to issue a writ of mandamus or a writ of certiorari or any other appropriate writ, order or direction quashing and setting aside the impugned judgment and order dated 21.08.2008 passed by Gujarat Revenue Tribunal in Revision Application No. TEN/BA/74/06 as being unjust, unreasonable, arbitrary, contrary to settled principle of law as also contrary to the facts and evidence and violative of Article 14 and 19 of the Constitution of India;
xxx xxx xxx 2.4.1 However, in Special Civil Application No. 12445 of 2008,
Gujarat Revenue Tribunal was not made party-respondent although in this appeal, the Gujarat Revenue Tribunal has been added as party respondent with the leave of the Division Bench.
3. Therefore, the question that falls for our determination is as to what are the tests which are required to be applied by a Division Bench of the High Court for deciding the question of maintainability of a Letters Patent Appeal under Clause-15 of the Letters Patent against an order passed by a learned Single Judge where the Special Civil Application, out of which the appeal arises, has been described as an application both under Articles 226 and 227 of the Constitution of India and the learned Single Judge has not specifically described in the order impugned whether His Lordship has exercised the jurisdiction under Article 226 or under Article 227 of the Constitution of India. We also propose to deal with the situation where the learned Single Judge has specifically exercised jurisdiction either under Article 226 or 227 of the Constitution or both.
4. Mr. Mihir Thakore, the learned Senior Advocate, appearing with Mr. Parthiv B. Shah and Mrs. Ketty A. Mehta appearing with Ms. Archana Acharya, on behalf of the appellants in Letters Patent Appeals No. 1219 of 2011 and 1220 of 2011 strenuously contended before us that in this type of a case, where the Special Civil Application has been filed both under Article 226 and Article 227 of the Constitution of India, a Letters Patent Appeal is invariably maintainable even though the learned Single Judge has not mentioned in the order impugned the particular provision of the Constitution of India under which His Lordship has exercised the power. According to Mr. Thakore, even if the learned Single Judge has specifically indicated that His Lordship exercised power under Article 227 of the Constitution, the same should be treated to be an order passed under Article 226 of the Constitution and a party to such proceeding is entitled to challenge the said order by invoking Clause-15 of the Letters Patent. Mr. Thakore contended that once a citizen has invoked Article 226 of the Constitution of India and prayed for a relief in the nature of writ of certiorari for setting aside an order of any court or tribunal, even though the selfsame relief can also be given in exercise of power under Article 227, such fact is immaterial for the purpose of deciding the question of maintainability of the appeal.
4.1 In other words, according to Mr.Thakore, once his client has invoked the jurisdiction under Article 226 or has prayed for a writ of certiorari in addition to the prayer for invoking the jurisdiction under Article 227 of the Constitution, any order passed on such application will be amenable to Clause-15 of the Letters Patent provided such order comes within the purview of a judgment within the meaning of Clause- 15. In support of his contention, Mr. Thakore has relied upon the following decisions of various High Courts as well as the Supreme Court:
[1] Shatrushlasinhji Digvijaysinhji Jadeja v. State of Gujarat & Ors. reported in 2012 [1] GLR 424 [2] Gujarat State Road Transport Corporation v. Chaudhary Popatbhai Revabhai, reported in 2005 [4] GLR 3395.
[3] Umaji Keshao Meshram and others. v. Smt. Radhikabai and another, reported in AIR 1986 SC 1272[1].
[4] Mavji C. Lakum v. Central Bank of India, reported in [2008] 12 SCC 726.
[5] Lokmat Newspapers Pvt.Ltd. v. Shankarprasad, reported in [1999] 6 SCC 275.
[6] Jagdish Balwantrao Abhyankar and others. v. State of Maharashtra and others, reported in AIR 1994 Bom. 141.
[7] Smt. Ujjam Bai v. State of U.P. and another, reported in AIR 1962 SC 1621[1].
[8] M.M.T.C. Limited v. Commissioner of Commercial Tax and others, reported in [2009] 1 SCC 8.
[9] Shahu Shikshan Prasarak Mandal and Anr.v. Lata P. Kore and Ors., reported in AIR 2009 SC 366.
[10] Ashok K. Jha and others. v. GardenSilk Mills Limited and Another, reported in [2009] 10 SCC 584.
[11] Syed Yakoob v. K.S. Radhakrishnan and others, reported in AIR 1964 SC 477[1].
[12] T.C. Basappa v. T.Nagappa and another, reported in AIR 1954 SC 440.
[13] Ouseph Mathai and others v. M. Abdul Khadir, reported in [2002] 1 SCC 319.
[14] Ishwarbhai N. Patel v. K.H. Trivedi and others, reported in 2003 [3] G.L.H. 146.
[15] Principal S.V.Doshi Girls High School and Anr.v. Lilaben Somabhai Gadasa, reported in 2012 [2] G.L.H. 428.
[16] Bhowanipore Gujarati Education Society and Anr.v. Kolkata Municipal Corporation and Ors. Etc. reported in AIR 2009 Cal. 140.
5. Mr. Anshin N. Desai, the learned advocate appearing in Letters Patent Appeal No. 894 and 895 of 2012, after adopting the submissions made by Mr. Thakore, has also relied upon the following decisions of the Supreme Court:
[1] Kishorilal v.Sales Officer District Land Development Bank and others, reported in [2006] 7 SCC 496.
[2] Shushilabai Laxminarayan Mudliyar and others v. Nihalchand Waghajibhai Saha and others, reported in 1993 Supp [1] SCC 11.[3]
State of Madhya Pradesh and others v. Visan Kumar Shiv Charan Lal, reported in [2008] 15 SCC 233.
6. Mr. A.J. Patel, the learned counsel appearing on behalf of the respondents, has, on the other hand, opposed the aforesaid contentions of Mr.Thakore and Mr.Desai and contended that in order to decide the true nature of the order, the substance of the same should be taken note of. Mr. Patel contended that once it is established that a learned Single Judge of a High Court without referring to the provision of the writ of certiorari simply on consideration of the materials on record, either has set aside the order impugned passed by the tribunal or has affirmed the same, it should be presumed to be an order passed in exercise of power under Article 227 of the Constitution of India. Mr. Patel, however, submitted that if the learned Single Judge specifically refers to Article 226 and issues writ in the nature of certiorari, in that event, however, the appeal is maintainable, provided however, the concerned tribunal is made party to the proceedings and the applicant has invoked Article 226 of the Constitution of India. In support of his contention, Mr. Patel has relied upon the following decisions of this High Court as well as of the Supreme Court:
[1] Maruti Bala Raut v.Dashrath Babu Wathare and others, reported in AIR 1974 SC 2051.
[2] Raj Madhavsang Gulabsang v. Parmar Ranchhodbhai Galabsang, reported in 1976 GLR 689.
[3] Shatrushlasinhji Digvijaysinhji Jadeja v. State of Gujarat & Ors. reported in 2012 [1] GLR 424.
7. Ms. Krina Calla, the learned Assistant Government Pleader appearing on behalf of the State has, however, supported the contention of Mr. Patel that these LPAs are not maintainable. In support of her contention, she has relied upon the following decisions:
1. The Bharat Bank Ltd, Delhi v. The Employees of the Bharat Bank Ltd, Delhi and the Bharat Bank Employee s Union, Delhi reported in AIR 1950 SC 188 Waryam Singh v. Aamarnath reported in AIR 1954 SC 215 Harinagar Sugar Mills Ltd.
v. Shyam Sunder Jhunjhunwala and others reported in AIR 1961 SC 1669.
Associated Cement Companies Ltd. v. P.N. Sharma and another reported in AIR 1965 SC 1595 State of Gujarat etc. v.
Vakhatsinghji Vajesinghji Vaghela reported in AIR 1968 SC 1481.
Umaji Keshao Meshram and ors. vs. Smt. Radhikabhai and Ors reported in AIR 1986 SC 1272.
8. Before we proceed further, it will be profitable to refer to the provisions contained in Articles 226 and 227 of the Constitution of India, which are quoted below:
226. Power of High Courts to issue certain writs.
(1) Notwithstanding anything in article 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including 3[writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.
(2) The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories.
(3) Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is made on, or in any proceedings relating to, a petition under clause (1), without
(a) furnishing to such party copies of such petition and all documents in support of the plea for such interim order; and
(b) giving such party an opportunity of being heard, makes an application to the High Court for the vacation of such order and furnishes a copy of such application to the party in whose favour such order has been made or the counsel of such party, the High Court shall dispose of the application within a period of two weeks from the date on which it is received or from the date on which the copy of such application is so furnished, whichever is later, or where the High Court is closed on the last day of that period, before the expiry of the next day afterwards on which the High Court is open; and if the application is not so disposed of, the interim order shall, on the expiry of that period, or, as the case may be, the expiry of the said next day, stand vacated.
(4) The power conferred on a High Court by this article shall not be in derogation of the power conferred on the Supreme Court by clause (2) of article 32.
227. Power of superintendence over all courts by the High Court.
(1) Every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction.] (2) Without prejudice to the generality of the foregoing provisions, the High Court may
(a) call for returns from such courts;
(b) make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts; and
(c) prescribe forms in which books, entries and accounts shall be kept by the officers of any such courts.
(3) The High Court may also settle tables of fees to be allowed to the sheriff and all clerks and officers of such courts and to attorneys, advocates and pleaders practising therein:
Provided that any rules made, forms prescribed or tables settled under clause (2) or clause (3) shall not be inconsistent with the provision of any law for the time being in force, and shall require the previous approval of the Governor.
(4) Nothing in this article shall be deemed to confer on High Court powers of superintendence over any court or tribunal constituted by or under any law relating to the Armed Forces.
8.1 At this stage, it will also be appropriate to refer to the fact that under the Gujarat High Court Rules, 1993, the mode of execution of the order passed under Article 226 of the Constitution is different from that of an order passed under Article 227 of the Constitution. Rules 189 to 193 prescribe the mode of execution of an order passed under Article 226 while Rule 194 describes the mode of execution of an order passed under Article 227 of the Constitution. Those Rules are quoted below:
189. Drawing up of order including costs.-
Every order passed on a petition under Article 226 of the Constitution, including any order as to costs, shall be drawn up as if it were a decree and shall be executable as a decree in the manner provided in the Code of Civil Procedure.
190. Execution of order of decree on original side.-
Any order in a petition under Article 226 of the Constitution may on an application in that behalf subject to the provisions of Section 82 of the Civil Procedure Code be transferred under section 39 of the Code of Civil Procedure to any Civil Court for execution.
191. Application for transmission of order or decree to original side for execution.
Every application for transmitting the order to a Civil Court under the preceding rule shall bear the requisite court fee stamp and shall be accompanied by a certified copy of the order. It shall be supported by an affidavit of the applicant.
(ii). Applications under the above sub-rule shall be heard and disposed of by the Registrar.
(iii). The Registrar, when transmitting the order, shall send all the documents necessary to be sent under the provisions of Order XXI, rule 6 of the Code of Civil Procedure and such other documents as he may deem necessary to the Court to which the order is transmitted for execution. Such documents may be sent directly by registered post to the court concerned.
192. Notice under O. XXI R.22, CPC.
(i). Where the provisions of Order XXI, Rule 22 are applicable, notice there under shall be issued by the court to which the order is transmitted under the preceding rule.
(ii). Such court shall determine all matters arising out of or in relation to the execution of the order transmitted for execution.
193. Reference to court for orders in case of doubts.-
In case of doubt or difficulty in regard to any application under rules 189 to 192, the Registrar may refer such application to the court for orders.
194. Execution or orders under Article 227.-
An order made by the High Court under Article 227 of the Constitution shall be executable in the same manner in which the order made by the Court or Tribunal against which the application under Article 227 has been made could have been executed under the law.
9. Similarly, under the Gujarat Court fees Act, 2004, on an application under Article 226 of the Constitution of India where the petitioner prays for enforcement of any fundamental right guaranteed under Part- III of the Constitution, the amount of court fees payable is Rs. 50/-. But if an application under Article 226 is filed for enforcement of any other rights than that of fundamental rights, the amount payable as court fees is Rs. 100/-. For invoking the jurisdiction under Article 227 of the Constitution the court fees payable is Rs. 50.
10. At this stage, it will be also appropriate to refer to clause 15 of the Letters Patent applicable to this High Court which is quoted below:
15. Appeal from the courts of original jurisdiction to the High Court in its appellate jurisdiction.
And we do further ordain that an appeal shall lie to the said High Court of Judicature at Madras, Bombay, Fort William in Bengal from the judgment (not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court and not being an order made in the exercise of a revisional jurisdiction, and not being a sentence or order passed or made in exercise of the power of superintendence under the provisions of Section 107 of the Government of India Act, or in the exercise of criminal jurisdiction) of one Judge of the said High Court or one Judge of any Division Court, pursuant to Section 108 of the Government of India Act, and that notwithstanding anything hereinbefore provided, an appeal shall lie to the said High Court from a judgment of one Judge of the said High Court or one Judge of any Division Court, pursuant to Section 108 of the Government of India Act, on or after the first day of February, 1929 in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court where the Judge who passed the judgment declares that the case is a fit one for appeal; but that the right of appeal from other judgments of Judges of the said High Court or of such Division Court shall be to Us, Our heirs or successors in Our or Their Privy Council, as hereinafter provided.
(Emphasis supplied).
11. Thus, from a plain reading of Clause 15 it is apparent that an appeal against an order passed in exercise of power of superintendence under Article 227 of the Constitution which is equivalent to Section 107 of the Government of India Act, 1935 is specifically prohibited by Clause 15 of the Letters Patent from its operation. It is also well-settled law as pointed out by the Supreme Court in the case of VINITA M KHANOLKAR VS. PRAGNA M PAI reported in (1998) 1 SCC 500, any statutory provision barring an appeal or revision cannot cut across the constitutional power of a High Court. Even the power flowing from the paramount charter under which the High Court functions would not get excluded unless the statutory enactment concerned expressly excludes appeals under letters patent.
In the same way, in our opinion, if the Letters Patent specifically prohibits the filing of an appeal in a given situation, such appeal cannot, at any rate, be maintainable in derogation of the paramount Charter of the High Court.
12. In this connection, we may refer to the decision of the two-judge-bench of the Supreme Court in the case of RAMESH CHANDRA SANKLA AND OTHERS VS. VIKRAM CEMENT AND OTHERS reported in AIR 2009 SC 713 = (2008) 14 SCC 58 which has followed the above principle as would appear from the following two paragraphs of the Judgment published in AIR:
33. In our considered opinion, however, on the facts and in the circumstances of the present case, the petitions instituted by the Company and decided by a Single Judge of the High Court could not be said to be original proceeding under Article 226 of the Constitution.
We are clearly of the view that the learned Single Judge had decided the petitions in exercise of power of superintendence under Article 227 of the Constitution.
34. We have already referred to the facts of the case. According to the Company, voluntary retirement was accepted by the employees. They thereafter challenged the action on the ground that the acceptance was not voluntary but they were compelled to opt for the scheme and were paid some amount which was not in consonance with law and the action of not allowing them to continue in the employment amounted to removal from service. They, therefore, approached Labour Court for an appropriate relief. The Labour Court entertained complaints and issued notice. The Company appeared and raised preliminary objections.
Issues were framed and a prayer was made by the Company to decide 'issues of law' as preliminary issues which prayer was rejected by the Labour Court. The Company approached Industrial Court which also did not interfere with the order of the Labour Court. That order was again challenged by the Company by filing petitions in the High Court and the learned Single Judge dismissed the petitions. In view of the aforesaid facts, we have no doubt that the learned Single Judge was exercising power of superintendence over a Court/Tribunal subordinate to it under Article 227 of the Constitution. Obviously, a remedy of intra-court appeal was not available.
We, therefore, hold that the Division Bench was right in coming to the conclusion that intra-court appeals filed by the Company were not maintainable. We see no infirmity in that part of the order. The contention of the appellant-Company is, therefore, rejected.
(Emphasis supplied by us).
13. It further appears that another two-judge bench of the Supreme Court in SLP (C) No. 9186 of 2007 ( M/S Rama & Company vs. State of M.P and another) disposed of on July 9, 2007 while rejecting a special leave application adopted the same view as would appear from the following short order:
Delay condoned. There is no ground to interfere with the order of the High Court as the question of law had already been decided by this court that if any writ petition is filed before the High Court against the order of the Board of Revenue and against that order of the High Court no LPA is maintainable as this is not the original order.
The Special Leave Petition is therefore, dismissed.
(Emphasis supplied by us).
14. Mr. Thakore, the learned Senior Advocate appearing for the appellants, however, did not dispute that a similar relief claimed for a writ in the nature of certiorari under Article 226 against an order of a civil court or a tribunal can also be given in exercise of power under Article 227 but according to him, once a litigant has invoked both Articles 226 and 227 of the Constitution for the relief of certiorari against an order of a civil court or the tribunal, whatever be the observations of the learned Single Judge, the order can be challenged by way of an appeal before a Division Bench by taking aid of Clause 15 of the Letters Patent if it is a judgment within the meaning of the said Clause. Therefore, according to Mr. Thakore, once the litigant has invoked Article 226 and the nature of the relief claimed is in substance comes within the purview of a writ in the nature of certiorari, the appeal is maintainable even if the learned Single Judge does not refer to writ of certiorari in the order and has apparently exercised jurisdiction under Article 227. Thus, according to Mr. Thakore, in each case, while considering the question of maintainability of the appeal, the above factors are required to be verified by the appellate court.
15. In our opinion, for ascertaining whether an order passed by a learned Single Judge is appealable under Clause 15 of the Letters Patent or not, the prime consideration is whether the learned Single Judge exercised original jurisdiction or not.
16. At this stage, we may profitably refer to the definition of the original jurisdiction as given in the Black s Law Dictionary, Sixth Edition, Centennial Edition, 1891-1991 which is quoted below:
Jurisdiction to consider a case in the first instance. Jurisdiction of court to take cognizance of a cause at its inception, try it, and pass judgment upon law and facts. Distinguished from appellate jurisdiction.
(Emphasis given by us).
16.1 According to Black's Law Dictionary, Ninth Edition, the term "original jurisdiction" means, "A court's power to hear and decide a matter before any other court can review the matter."
(Emphasis supplied by us).
16.2 According to The Law Lexicon of P. Ramanatha Aiyar, Second Edition 1997, the phrase "original jurisdiction" means, jurisdiction to entertain cases in the first instance, as distinguished from appellate jurisdiction. The jurisdiction of first instance; the authority of a court to take cognizance of a controversy at the inception of legal proceedings thereon [S.193, Cr.PC and Art.131, Const.] 16.3 According to Advanced Law Lexicon, 3rd Edition, 2009 by P. Ramanatha Aiyar, the phrases Court of original and Court of appellate jurisdiction have been defined as follows:
Courts of original jurisdiction are those in which an action has its first source or existence and which do not take jurisdiction of it by appeal. Courts of appellate jurisdiction are those which review causes removed by appeal or error from another court. Similarly, the phrase Court of original jurisdiction has been defined separately as follows: A court of first instance. A court where an action is initiated and first heard.
16.4 Halsbury's Laws of England, Fourth Edition, while explaining "certiorari", in para 165 observes as under:-
"Where the inferior tribunal has acted without jurisdiction certiorari to quash the proceedings may be granted. Want of jurisdiction may arise from the nature of the subject matter, so that the inferior tribunal had no authority to enter on the inquiry, or upon some part of it. It may also arise from the absence of some essential preliminary proceedings. Thus, although the inferior tribunal may have jurisdiction over the subject matter of the inquiry, it may be a condition precedent to the exercise of its jurisdiction that the proceedings should be begun within a specified time, or that some step should have been previously taken by the person who institutes proceedings before the tribunal. Under various statutes certain notices are requisite before the commencement of proceedings; and the omission to serve such notices deprives the inferior tribunal of jurisdiction and affords ground for certiorari.
Similarly, certiorari will issue to quash a determination of a tribunal which, having jurisdiction in the first instance, has proceeded to exceed its jurisdiction by entertaining a matter lying outside its province, or which has otherwise continued upon an inquiry despite the occurrence of a fact ousting its jurisdiction."
(Emphasis given by us).
17. An important question of law fell for the consideration of a five-judge-bench of the Karnataka High Court in the case of GURUSHANTH PATTEDAR VS. MAHABOOB SHAHI KULBURGA MILLS, GULBURGA AND ANOTHER reported in AIR 2005 Karnataka 377 (F.B), whether an order passed by a learned Single Judge in a petition filed under Article 227 of the Constitution was appealable under Section 4 of the Karnataka High Court Act, 1961.
17.1 Section 4 of the Karnataka High Court Act, 1961 reads as under:-
"4.
Appeals from decisions of a single Judge of the High Court:- An appeal from a judgment, decree or sentence passed by a single Judge in the exercise of the original jurisdiction of the High Court under this Act or under law for the time being in force, shall lie to and be heard by a Bench consisting of two other Judges of the High Court" (Emphasis supplied) 17.2 The Full Bench of the Karnataka High Court, after careful reading of Section 4, made the following observations:-
"A careful reading of the aforesaid provision makes it clear that a right of appeal has been provided under Section 4 of the Act against a judgment or order of a learned single Judge only if it is passed in the exercise of original jurisdiction of the High Court and not otherwise. The word 'jurisdiction' means the power to hear and determine a case and the phrase "original jurisdiction"
means the power to entertain cases in the first instance. Thus, a Court of original jurisdiction is one in which an action has its origin and it also means that the litigation may be brought originally in that Court.
In order to know when this Court exercises original jurisdiction, it will have to be found out in each case whether the issues raised in the petition arose for adjudication for the first time before the High Court or had they been already raised and adjudicated upon by any Court or tribunal subordinate to it."
18. Thus, if an order passed by the tribunal or court subordinate to High court is the subject-matter of challenge in High Court on merit, the exercise of such jurisdiction cannot be said to be original in nature but it is really in exercise of power of superintendence except only in cases where the conditions for issue of a writ of certiorari are satisfied. But the issue of writ of certiorari can only be possible, as pointed out by Halsbury s Laws of England quoted above, if the concerned tribunal or the court subordinate to High Court while passing the order impugned exercises original jurisdiction and not the appellate or revisional jurisdiction. On the other hand,it is well settled that the power of revision or superintendence is really a part of exercise of appellate jurisdiction and the order of the subordinate authority on exercise of power merges with the revised order. (See SHANKAR RAMCHANDRA ABHYANKAR V. KRISHNAJI DATTATRAYA BAPAT reported in AIR 1970 SC 1).
19. In the case of SURYA DEV RAI VS. RAM CHANDRA RAI reported in AIR 2003 SC 3044, the Supreme Court highlighted the characteristic of the writ of certiorari and distinguished the same from the power of superintendence in the following way:
24. The difference between Articles 226 and 227 of the Constitution was well brought out in Umaji Keshao Meshram and others v. Smt. Radhikabai and another, (1986) Supp SCC 401. Proceedings under Article 226 are in exercise of the original jurisdiction of the High Court while proceedings under Article 227 of the Constitution are not original but only supervisory. Article 227 substantially reproduces the provisions of Section 107 of the Government of India Act, 1915 excepting that the power of superintendence has been extended by this Article to tribunals as well. Though the power is akin to that of an ordinary court of appeal, yet the power under Article 227 is intended to be used sparingly and only in appropriate cases for the purpose of keeping the subordinate courts and tribunals within the bounds of their authority and not for correcting mere errors. The power may be exercised in cases occasioning grave injustice or failure of justice such as when (i) the court or tribunal has assumed a jurisdiction which it does not have, (ii) has failed to exercise a jurisdiction which it does have, such failure occasioning a failure of justice, and (iii) the jurisdiction though available is being exercised in a manner which tantamounts to overstepping the limits of jurisdiction.
25. Upon a review of decided cases and a survey of the occasions wherein the High Courts have exercised jurisdiction to command a writ of certiorari or to exercise supervisory jurisdiction under Article 227 in the given facts and circumstances in a variety of cases, it seems that the distinction between the two jurisdictions stands almost obliterated in practice. Probably, this is the reason why it has become customary with the lawyers labelling their petitions as one common under Articles 226 and 227 of the Constitution, though such practice has been deprecated in some judicial pronouncement. Without entering into niceties and technicality of the subject, we venture to state the broad general difference between the two jurisdictions. Firstly, the writ of certiorari is an exercise of its original jurisdiction by the High Court; exercise of supervisory jurisdiction is not an original jurisdiction and in this sense it is akin to appellate revisional or corrective jurisdiction. Secondly, in a writ of certiorari, the record of the proceedings having been certified and sent up by the inferior court or tribunal to the High Court, the High Court if inclined to exercise its jurisdiction, may simply annul or quash the proceedings and then do no more.
In exercise of supervisory jurisdiction the High Court may not only quash or set aside the impugned proceedings, judgment or order but it may also make such directions as the facts and circumstances of the case may warrant, may be by way of guiding the inferior court or tribunal as to the manner in which it would now proceed further or afresh as commended to or guided by the High Court. In appropriate cases the High Court, while exercising supervisory jurisdiction, may substitute such a decision of its own in place of the impugned decision, as the inferior court or tribunal should have made. Lastly, the jurisdiction under Article 226 of the Constitution is capable of being exercised on a prayer made by or on behalf of the party aggrieved; the supervisory jurisdiction is capable of being exercised suo motu as well.
(Emphasis supplied).
20. In the case of UDIT NARAIN SINGH MALPAHARIA, V. ADDITIONAL MEMBER BOARD OF REVENUE, BIHAR AND ANOTHER reported in AIR 1963 SC 786, a four-judge-bench of the Supreme Court elaborated the scope of a writ of certiorari and also pointed out the necessity of impleading the tribunal or the Court whose order is sought to be challenged as party in the proceedings by making the following observations:
The next question is, what is the nature of a writ of certiorari? What relief can a petitioner in such a writ obtain from the Court? Certiorari lies to remove for the purpose of quashing the proceedings of inferior courts of record or other persons or bodies exercising judicial or quasi-judicial functions. It is not necessary for the purpose of this appeal to notice the distinction between a writ of certiorari and a writ in the nature of certiorari; in either case the High Court directs an inferior tribunal or authority to transmit to itself the record of proceedings pending therein for scrutiny and, if necessary, for quashing the same. It is well settled law that a certiorari lies only in respect of a judicial or quasi-judicial act as distinguished from an administrative act. The following classic test laid down by Lord Justice Atkin, as he then was, in The King v. Electricity Commrs. (1924) 1 KB 171 and followed by this Court in more than one decision clearly brings out the meaning of the concept of judicial act:
"Wherever any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority they are subject to the controlling jurisdiction of the King's Bench Division exercised in these writs."
Lord Justice Slesser in The King v. London County Council, (1931) 2 KB 215(243) dissected the concept of judicial act laid down by Atkin, L. J., into the following heads in his Judgment: "wherever any body of persons (1) having legal authority (2) to determine questions affecting rights of subjects and (3) having the duty to act judicially (4) act in excess of their legal authority -a writ of certiorari may issue." It will be seen from the ingredients of judicial act that there must be a duty to act judicially. A tribunal, therefore, exercising a judicial or quasi-judicial act cannot decide against the rights of a party without giving him a hearing or an opportunity to represent his case in the manner known to law. If the provisions of a particular statute or rules made thereunder do not provide for it principles of natural justice demand it. Any such order made without hearing the affected parties would be void. As a writ of certiorari will be granted to remove the record of proceedings of an inferior tribunal or authority exercising judicial or quasi-judicial acts, ex hypothesi it follows that the High Court in exercising its jurisdiction shall also act judicially in disposing of the proceedings before it. It is implicit in such a proceeding that a tribunal or authority which is directed to transmit the records must be a party in the writ proceedings, for, without giving notice to it, the record of proceedings cannot be brought to the High Court. It is said that in an appeal against the decree of a subordinate court, the court that passed the decree need not be made a party and on the same parity of reasoning it is contended that a tribunal need not also be made a party in a writ proceeding. But there is an essential distinction between an appeal against a decree of a subordinate court and a writ of certiorari to quash the order of a tribunal or authority: in the former, the proceedings are regulated by the Code of Civil Procedure and the court making the order is directly subordinate to the appellate court and ordinarily acts within its bounds, though sometimes wrongly or even illegally, but in the case of the latter, a writ of certiorari is issued to quash the order of a tribunal which is ordinarily outside the appellate or revisional jurisdiction of the court and the order is set aside on the ground that the tribunal or authority acted without or in excess of jurisdiction. In this case, the Board of Revenue and the Commissioner of Excise were rightly made parties in the writ petition.
(Emphasis supplied).
21. For all the above reasons, the Supreme Court in the case of Ramesh Chandra Sankla (supra), ultimately made the following observations:
32. In our judgment, the learned counsel for the appellant is right in submitting that nomenclature of the proceeding or reference to a particular Article of the Constitution is not final or conclusive. He is also right in submitting that an observation by a Single Judge as to how he had dealt with the matter is also not decisive. If it were so, a petition strictly falling under Article 226 simpliciter can be disposed of by a Single Judge observing that he is exercising power of superintendence under Article 227 of the Constitution. Can such statement by a Single Judge take away from the party aggrieved a right of appeal against the judgment if otherwise the petition is under Article 226 of the Constitution and subject to an intra-court/Letters Patent Appeal?
The reply unquestionably is in the negative [see Pepsi Foods Ltd. and Anr. v. Special Judicial Magistrate and Ors., (1998) 5 SCC 749].
(Emphasis supplied by us).
22. Thus, in a given case if the prayer of certiorari before the learned Single Judge is not maintainable under Article 226 of the Constitution for any lawful reason and the learned Single Judge, consequently, refuses to exercise such jurisdiction, by merely describing the application as one under Article 226, one cannot get the benefit of intra court appeal.
23. It is also a settled law that if a court exercises a power which it does not possess, the forum of challenge of such order before higher authority will depend upon the fact whether a right of appeal is conferred upon such forum or not, in the event the court passed the order within its jurisdiction. The following observations of the Supreme Court in the case of JANARDHAN REDDY VS. STATE OF HYDRABAD reported in AIR 1951 SC 217, in this connection, are relevant and quoted below:
It is well settled that if a Ct. acts without jurisdiction, its decision can be challenged in the same way as it would have been challenged if it had acted with jurisdiction, i.e., an appeal would lie to the Ct. to which it would lie if its order was with jurisdiction. (See Ranjit Misser v. Ramudar Singh, 16 C. L. J. 77: (16 1. C. 940), Bandiram v. Purna Chandra, 45 Cal. 926 at p. 919 : (A. I. R. (5) 1918 Ca1. 435), Wajuddi Pramanik v. Md Bolaki Morul, 30 C. W. N. 63 at p. 64 : (A. I. R. (12) 1915 Cal. 1032) and Kalipada v. Sekher Bashini Dasya, 24 C. L. J. 235 :
(A.I.R. 4. 1917 Ca1. 320).
23.1 Thus, if in spite of the fact that a writ of certiorari in a given fact is not maintainable because of the law relating to certiorari but a learned Single Judge in violation of such prohibition issues a writ of certiorari, in view of the above principles laid down in the case of JANARDHAN REDDY (supra), an intra court appeal would lie to the Division Bench as if the learned Single Judge issued certiorari in lawful exercise of his jurisdiction.
24. We now propose to deal with the decisions cited by the learned Counsel for the appellants.
25. In the case of UMAJI KESHAO MESHRAM AND OTHERS v. SMT. RADHIKABHAI AND ANORTHER, AIR 1986 SC 1272, the Supreme Court held that the proceeding under Article 226 is an original proceeding and when it concerns civil rights, it is an original civil proceeding. Consequently, the Supreme Court proceeded, where a petition filed under Article 226 of the Constitution is, according to the rules of a particular High Court, heard by a Single Judge, an intra court appeal will lie from the judgment, if such a right of appeal is provided in the charter of that High Court, whether such Charter be Letters Patent or a Statute. According to the Supreme Court, 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 Article 226 would be appealable to a Division Bench of that High Court. The Supreme Court further held that proceeding under Article 227 is not an original proceeding and intra court appeal does not lie against the judgment of a single Judge of the Bombay High Court given in a petition under Article 227 by reason of such appeal being expressly barred by clause 15 of the Letters Patent of that High Court. At paragraph 106 of the judgment, the Supreme Court further held that where the facts justify a party in filing an application either under Articles 226 or 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 Article 226 of the Constitution, and if in deciding the matter, in the final order the Court gives ancillary directions which may pertain to Article 227 of the Constitution, 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.
25.1 In the cases before us, the appellants seek to challenge orders passed by tribunals in its revisional jurisdiction, and thus, according to the decision of the Supreme Court in the cases of Ramesh Chandra Sankla (supra) and M/s Rama and Company (supra), the prayer of certiorari is not maintainable as the order impugned is not passed by a court or tribunal of the first instance in exercise of original jurisdiction. Therefore, in all these cases before us, the orders of the tribunal being passed in revisional jurisdiction or in appellate jurisdiction and not in its original jurisdiction, an aggrieved litigant has no right to challenge such order of the tribunal under Article 226 of the Constitution, and the only avenue available to such a litigant is under Article 227 of the Constitution, and such being the position, no appeal under clause 15 of the Letters Patent is maintainable being specifically prohibited under that very Clause 15. These are not the cases where the substantial part of the order appealed against is under Article 226 because Article 226 is not even maintainable against the order of the tribunal or court subordinate to High Court passed in exercise of appellate or revisional jurisdiction. In none of these cases before us, the learned Single Judge has even erroneously exercised original jurisdiction by issuing a writ of certiorari. In the case of UMAJI KESHAO MESHRAM AND OTHERS (supra) the Supreme Court, after holding that the Letters Patent appeal in that case was not maintainable, ultimately even on merit, upheld the order of the learned Single Judge who set aside the order of Revenue Tribunal which was exercising revisional jurisdiction by specifically holding that the learned Single Judge exercised power under Article 227 of the Constitution.
We, therefore, find that the said decision does not help the appellants.
26. In the case of MAVJI C. LAKUM v. CENTRAL BANK OF INDIA, (2008) 12 SCC 726, an order passed by an Industrial Tribunal answering a Reference in favour of the appellant and setting aside the punishment of discharge was the subject-matter of challenge before the learned Single Judge of this High Court. It appears that the petition filed before the High Court was under Article 226 of the Constitution of India challenging the award passed by the Industrial Tribunal. Thus, an order passed by the Industrial Tribunal in its original jurisdiction was challenged by filing an application under Article 226 of the Constitution which is not the case before us. Against such an order, an appeal was very much maintainable. But, in spite of that, a Division Bench of the High Court held that appeal was not maintainable. In such circumstances, the Supreme Court held that apart from the fact that the petition was labelled as one under Article 226 of the Constitution, it was clear that the grounds raised in the petition suggested that the petition was not only under Article 227 of the Constitution but also under Article 226 of the Constitution and in the grounds it was specifically stated that the order passed by the tribunal was arbitrary, unreasonable, unjust and perverse. In such a situation, the Supreme Court was of the view that the writ-petitioner was justified in approaching the learned Single Judge both under Articles 226 and 227 of the Constitution.
26.1 We have already pointed out that in all the cases before us, the appellants challenged the orders of the tribunal passed in exercise of appellate or revisional jurisdiction and, thus, these cases cannot be said to be ones where original jurisdiction exercisable under Article 226 of the Constitution against the order of the tribunals is permissible. It is well-settled law that a decision is an authority in the facts of that case and a little variation of fact may make it inapplicable to a slightly different situation. (See Government of Karnataka and others vs Gowramma and others reported in AIR 2008 SC 863) We, thus, find that the said decision cannot help the appellants in any way.
27. In the case of LOKMAT NEWSPAPERS PVT. LTD. v. SHANKAR PRASAD reported in (1999) 6 SCC 275, a two-Judge-bench of the Supreme Court held that if a Single Judge exercised jurisdiction under Article 226, an LPA would be maintainable but if jurisdiction exercised is under Article 227, the LPA would not be maintainable. In that context, it was held by the said bench that the averments made in the writ-petition that while interpreting relevant statutory provisions, the Labour Court and Industrial Court committed serious error of law which resulted in miscarriage of justice and violation of fundamental rights and as such, the prayer made to call for the record and proceedings and after perusal thereof, to quash and set aside the orders passed by the Labour Court and Industrial Court in Revision, according to the Supreme Court, was in substance invocation of certiorari under Article 226. According to the Supreme Court, where facts justify filing of the petition both under Articles 226 and 227 and the petition so filed is dismissed by the learned Single Judge on merits, the petition should be treated to have been made under Article 226 so as not to deprive the petitioner of his right to prefer Letters Patent Appeal before the Division Bench.
27.1 In the said case, [vide paragraphs 8 to 10 of the judgment] the complaint filed by the respondent before the Labour Court was dismissed by the Labour Court and it was held that the retrenchment order did not attract any of the provisions of Schedule IV Item 1 of the Maharashtra Act and that the appellant was not guilty of any unfair labour practice when it passed the impugned retrenchment order against the respondent. The respondent filed a Revision Petition before the Industrial Tribunal, Nagpur, which came to be dismissed by the tribunal upholding the findings of the Labour Court that the appellant had not engaged in any unfair labour practice. The respondent then filed a writ-petition under Articles 226 and 227 of the Constitution challenging the decision rendered by both the Labour Court and Industrial Tribunal below. The said writ-petition was also rejected by the learned Single Judge against which the respondent preferred a Letters Patent Appeal before the Division Bench under clause 15 of the Letters Patent. The Division Bench, by its order dated 6th November 1996 held that the appellant had engaged in unfair labour practice and it was directed to pay back-wages and other benefits to the respondent from the date of the order of retrenchment till the date of retirement. In the above context, the matter came up before the Supreme Court. From the above facts, it appears that though the writ-application was filed under Articles 226 and 227 of the Constitution of India, it was really challenging a revisional order of the Industrial Court which affirmed the order of the Labour Court. Thus, according to the decision of the Supreme Court in the cases of Ramesh Chandra Sankla (supra) and M/s Rama and Company (supra), there was no scope of exercising writ of certiorari against the order of the Industrial Tribunal which was exercising a revisional powers and not the original power. In the said decision, the Supreme Court did not take into consideration the question whether the Letters Patent Appeal was maintainable or not and ultimately, set aside the order of the Division Bench and held that the order of the Industrial Tribunal should not have been set aside by the Division Bench. Thus, in our opinion, the decision in the case of Lokmat Newspapers Pvt. Ltd.
[supra], cannot be said to be a precedent on the question of maintainability of a Letters Patent Appeal before the Division Bench arising out of an application under Article 226 of the Constitution of India. As pointed out by a Constitutional Bench of the Supreme Court in the case of State of Orissa vs. Sudhansu Sekhar Misra and others reported in AIR 1968 SC 647, a decision is only an authority for what it actually decides. What is of essence in a decision is its ratio and not every observations found therein nor what logically follows from the various observations made in it. Thus, by taking aid of the decision in the case of Lokmat Newspapers Pvt. Ltd.
[supra], it cannot be lawfully contended that the Supreme Court in that decision has laid down as a proposition of law that a certiorari is also available against the order passed in exercise of revisional power of a tribunal.
28. In the case of SMT.
UJJAM BAI v. STATE OF U.P AND ANR.
reported in AIR 1962 (SC) 1621, it was held that whenever a judicial or quasi-judicial tribunal is empowered and required to inquire into the questions of law or fact for the purpose of giving a decision on it, its findings thereon cannot be impeached collaterally on or an application for certiorari but are binding until reversed on appeal. According to the Supreme Court, where a quasi-judicial authority has jurisdiction to decide a matter, it does not lose its jurisdiction by coming to a wrong conclusion, whether it is wrong in law or in fact. The question whether a tribunal has jurisdiction, according to the Supreme Court, depends not on the truth or falsehood of the facts into which it has to enquire, or upon the correctness of its findings on these facts, but upon their nature and it is determinable at the commencement, not at the conclusion of the inquiry. It was further held by the Supreme Court that a tribunal may lack jurisdiction if it is improperly constituted or if it fails to observe certain essential preliminaries to the inquiry but it does not exceed its jurisdiction by basing its jurisdiction upon an incorrect determination of any question that it is empowered or required to determine.
28.1 We fail to appreciate how the aforesaid decision can be of any help to the appellants in the cases before us where the question is whether invocation of original jurisdiction under Article 226 of the Constitution by issuing a writ of certiorari is permissible against an order of a tribunal which is not exercising original power but invoking revisional or appellate power. We, therefore, find that the said decision is of no help to the appellants in the present cases.
29. In the case of MMTC LIMITED v. COMMISSIONER OF COMMERCIAL TAX & ORS. reported in (2009) 1 SCC 8, it was held by the Supreme Court that the High Court, while issuing writ of certiorari under Article 226 of the Constitution can only annul a decision of a tribunal whereas under Article 227 of the Constitution, it can issue further directions as well. According to the Supreme Court, in the said case, the High Court seemed to have gone by the cause-title or nomenclature, i.e., the description given in the writ-petition to be one under Article 227 of the Constitution and it did not consider the nature of the controversy and the prayer involved in the writ-petition. The Supreme Court pointed out that prayer was to quash the order of assessment passed by the Assistant Commissioner, Commercial Tax levying purchases as well as entry tax, and the order was set aside and thus, the writ-appeal would be heard by the Division Bench on merits. According to the Supreme Court, it cannot be said in a hyper technical manner that an order passed in writ-petition, if there is assail to the order emerging from the inferior tribunal or subordinate courts, has to be treated all the time for the purpose to be under Article 227 of the Constitution of India.
29.1 It appears that in the said decision, the prayer made in the writ-application was to quash the order of assessment passed by the Assistant Commissioner, Commercial Tax levying purchase tax as well as entry tax, and that being so, there was no justification of construing the writ-application to be one under Article 227 of the Constitution.
29.2 In the circumstance, the observation of the Supreme in the case of MMTC Limited [supra] has nothing to do with the present cases when we are concerned with the cases where the revisional orders passed by the tribunal are sought to be quashed before the High Court and such exercise of power cannot be said to be an exercise of original jurisdiction so as to justify issue of a writ of certiorari. We, thus, find that the said decision is inappropriate in the facts of the present case.
30. In the case of SHAHU SHIKSHAN PRASARAK MANDAL & ANR. v. LATA P KORE & ORS. reported in AIR 2009 SC 366 it appears that a combined application under Articles 226 and 227 of the Constitution was filed against an order of a tribunal and it was specifically suggested that the order passed by the tribunal was arbitrary, unreasonable, unjust and perverse and further complaint was that the tribunal s order pertains to failure on the part of the tribunal to appreciate certain facts and eventualities thereby complaining non-application of mind on the part of the tribunal. In the circumstances, it was held that an application under Articles 226 and 227 of the Constitution of India was maintainable. However, it does not appear from the judgment whether the tribunal was exercising revisional power or original power. If it is against the original power exercised by the tribunal, the prayer for certiorari is, no doubt, maintainable if the essential conditions are present for issue of such a writ, but in the cases before us, we are concerned with cases where the tribunals below have exercised their revisional power and not the original power and in such circumstances, the High Court can exercise power only under Article 227. Therefore, the principles laid down in the case of Shahu Shikshan Prasarak Mandal [supra] are not applicable to the facts of the present case.
31. In the case of ASHOK K JHA AND ORS. v. GARDEN SILK MILLS LTD. AND ANR. reported in (2009) 10 SCC 584 a two-judge-bench of the Supreme Court was considering whether the nomenclature of the writ-application is the decisive factor for considering whether the application was really under Article 226 or Article 227 of the Constitution. It was held that if the judgment under appeal had fallen squarely within four corners of Article 227, intra court appeal from such judgment would not be maintainable, and, on the other hand, if the petitioner had invoked the jurisdiction of the High Court for issuance of certain writ under Article 226, although Article 227 is also mentioned, and principally the judgment appealed against falls under Article 226, the appeal would be maintainable. According to the Supreme Court, what is important to be ascertained is the true nature of the order passed by the Single Judge and not what provision he mentioned while exercising such powers.
According to the Supreme Court, a statement by a learned Single Judge that he exercised power under Article 227 cannot take away the right of appeal against such judgment if the power is otherwise found to have been exercised under Article
226. According to the Supreme Court, the vital factor for determination of maintainability of the intra court appeal is the nature of jurisdiction invoked by the party and the true nature of the principal order passed by the Single Judge. The Supreme Court further pointed out in the said case that the petitioner had invoked the jurisdiction of the High Court by praying for a writ of certiorari and not the supervisory jurisdiction of the High Court.
31.1 It further appears from paragraph 13 of the judgment that the Industrial Court set aside the order of the First Labour Court and directed the employer to withdraw the orders of transfer and to entrust to the employees the work of the original post. The employer challenged the order of the Industrial Court by filing a petition under Articles 226 and 227 of the Constitution. Thus, the High Court was approached not against the original order of the Labour Court but against the order of the Industrial Court. In such circumstances, according to the decision of the Supreme in the cases of Ramesh Chandra Sankla (supra) and M/s Rama and Company (supra), relied upon by us above, an application praying for a writ of certiorari is not maintainable as the Industrial Tribunal below was not exercising original jurisdiction. It appears that the two-judge-bench did not take note of the said decision in the cases of Ramesh Chandra Sankla (supra) and M/s Rama and Company (supra) relied upon by us in this order. We are, therefore, unable to follow the decision as a precedent in support of the contention that even if the subject-matter of challenge before High Court is the order passed not in original jurisdiction by the tribunal, it should be treated to be one under Article 226.
32. In the case of SYED YAKOOB v. K.S. RADHAKRISHNAN AND ORS.
reported in AIR 1964 SC 477, the Supreme Court merely described the circumstances under which a writ of certiorari could be granted against the order of tribunals below. According to the Supreme Court, the jurisdiction of the High Court to issue a writ of certiorari is a supervisory jurisdiction and the court exercising it is not entitled to act as an appellate court. According to the said decision, this limitation necessarily means that findings of fact reached by the inferior court or tribunal as a result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. The Supreme Court further held that an error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the tribunal, the Supreme Court further held that a writ of certiorari can be issued if it is shown that in recording the said finding, the tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, according to the said decision, if a finding of fact is based on no evidence that would be regarded as an error of law, and can be corrected by a writ of certiorari. It is further pointed out that a finding of fact recorded by a tribunal cannot be challenged in the proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the tribunal was insufficient or inadequate to sustain the impugned findings. The Supreme Court, by majority, allowed the appeal and dismissed the writ-application filed before the High Court on the ground that it was not a fit case for exercise of writ of certiorari. However, in that case, the question whether a writ of certiorari can be issued against a tribunal not exercising original jurisdiction was not considered at all. Thus, the decision in the case of Syed Yakoob [supra] does not answer the question involved in the cases on hand. In other words, in the case of Syed Yakoob [supra] the question whether an LPA is maintainable or not was not the subject-matter.
33. In the case of T.C. BASAPPA v. T. NAGAPPA AND ANR.
reported in AIR 1954 SC 440, a five-judge-bench of the Supreme Court described the nature of writ of certiorari. In that case, the question was not of exercise of jurisdiction under clause 15 of the Letters Patent but the question was of exercise of certiorari power under Article 226 of the Constitution against the decision of the Election Tribunal. Thus, the said decision is of no help for the purpose of deciding the question as to whether the original writ jurisdiction can be exercised against revisional power exercised by an inferior court or tribunal when such court or tribunal has admittedly not exercised original jurisdiction.
34. In the case of OUSEPH MATHAI AND OTHERS VS. M. ABDUL KHADER reported in (2002) 1 SCC 319, the Supreme Court was considering the scope of exercise of power under Article 227 of the Constitution of India against an order passed by the Appellate Authority under the Rent Control Act. In the cases before us, we are not at all concerned with the exercise of such power. Thus, the said decision does not help us in resolving the question before us.
35. In the case of SHATRUSHLASINHJI DIGVIJAYSINHJI JADEJA VS. STATE OF GUJARAT reported in (2012) 1 GLR 424, a Division Bench of this court held that no appeal lies against the order passed by a learned Single Judge of this court where an order passed by Gujarat Revenue Tribunal was challenged. We find that the said decision is in conformity with the view taken by us.
36. In the case of GUJARAT STATE ROAD TRANSPORT CORPORATION VS. CHAUDHURY POPATPHAI reported in 2005 (4) GLR 3395 a Division Bench of this court was considering whether the order passed by the learned Single Judge refusing to interfere with the order of the labour court setting aside the order of termination can be challenged in a Letters Patent Appeal. It appears that the Labour Court exercised original jurisdiction and the Division Bench was of the view that the award passed by the Labour Court was passed in violation of Section 11 A of the Industrial Disputes Act and the same was quashed. Thus, the Division Bench in reality in exercise of power under Article 226 issued certiorari. The said decision cannot have any application to a case of exercise of jurisdiction of a tribunal which is not original.
37. In the case of PRINCIPAL S. V. DOSHI GIRLS HIGH SCHOOL AND ANOTHER VS. LILABEN SOMABHAI GADASA reported in (2012 (2) GLH 428), a Division Bench of this court held that even for issue of a writ in the nature of certiorari against the orders of courts and tribunals subordinate to High court, those tribunals or courts should not be made party in the proceedings under Article 226 of the Constitution. With great respect to the learned judges of the said bench, we are unable to follow the said decision in view of clear mandate of the four-judge-bench of the Supreme Court in the case of Udit Narain Singh Malpaharia, v. Additional Member Board of Revenue, Bihar and another reported in AIR 1963 SC 786 which we have already quoted in this judgment. It appears that the said Division Bench did not take note of the decision of Udit Narain Singh Malpaharia (supra), and there is no subsequent decision of any larger bench of the Supreme Court disapproving the said directive and taking the view that in an action for certiorari which is original proceedings, the tribunal or the court, whose order is sought to be quashed, need not be made party to the proceedings.
38. In the case of BHOWANIPORE GUJARATI EDUCATION SOCIETY AND ANOTHER VS. KOLKATA MUNICIPAL CORPORATION AND OTHERS reported in AIR 2009 Cal 140, the Full Bench of the Calcutta High Court was considering whether an order passed by the Appellate Tribunal constituted under the Kolkata Municipal Corporation Act can be challenged under Article 226 of the Constitution by praying for a writ of certiorari. We have already pointed out that prayer of certiorari is maintainable if the tribunal below exercises original jurisdiction. However, under the Kolkata Municipal Corporation Act, the Appellate Tribunal is constituted providing power of hearing appeal against various orders including the order of demolition passed by the other authority under the selfsame Act. Thus, such order passed by a tribunal constituted for exercising appellate jurisdiction cannot be challenged under Article 226 by praying for a writ of certiorari. The appropriate remedy, in such circumstances, lies under Article 227, which according to the Rules of the Calcutta High Court falls within Civil Revisional Jurisdiction in the appellate side and not in the original side. Thus, according to the provisions of Letters Patent applicable to the Calcutta High Court, no appeal can lie under Clause 15 thereof against an order of the appellate tribunal constituted under any Statute. With great respect to the Hon ble judges of the said Full Bench, we are unable to concur with the view taken by Their Lordships that a writ of certiorari was available against the order of the tribunal exercising appellate jurisdiction. It appears that the Full Bench did not take note of any of the following Supreme Court decisions which supports our view:
Ramesh Chandra Sankla (supra).
M/S Rama and Company (supra).
38.1 We, therefore, hold that the above Full Bench decision of the Calcutta High Court does not lay down the law in tune with the decisions of the Supreme Court mentioned above.
39. In the case of SUSHILABAI LAXMINARAYAN MUDLIYAR VS. NIHALCHAND WAGHAJIBHAI SHAHA AND ANOTHER reported in 1993 Supp (1) SCC 11, a two-judge-bench of the Supreme Court held that if the facts justify a party in filing an application under either Article 226 or 227 of the Constitution and the party chooses to file his application under both these articles, the party should be given right of appeal under clause 15 where the substantial part of the order sought to be appealed against is under Article 226. Similarly, in the case of KISHORI LAL VS. SALES OFFICER reported in (2006) 7 SCC 496, a decision relied upon by Mr. Desai, another two-judge-bench of the Supreme Court relied upon the above case of Sushilabai Laxminarayan Mudliyar [supra] and repeated the said proposition. We are, in these cases, not concerned with a situation where substantive part of cause of action falls under Article 226 but in the cases before us, as pointed out by us earlier, no part comes under exercise of original jurisdiction and only provision applicable is under Article 227. Those two decisions, thus, do not help the appellants in any way.
40. In the case of STATE OF MADHYA PRADESH VS. VISAN KUMAR SHIV CHARAN LAL reported in (2008) 15 SCC 233, a two-judge-bench was dealing with a case where an award on a reference under Section 10 of the Industrial Disputes Act was challenged before High Court. In such a case, it was held that the Letters Patent Appeal was maintainable. In our opinion, the Industrial Tribunal having exercised original jurisdiction, a prayer for certiorari would be maintainable if the essential conditions for invocation of such writ are present. In such a situation, for such improper exercise of jurisdiction, an appeal will be maintainable under Clause 15 of the Letters Patent. The said decision, consequently, has no application to the cases with which we are concerned because here the tribunals have exercised appellate or revisional power. Thus, the said decision has no application to the facts of the present cases.
41. From our above discussions, the following answers emerge out for determining the tests which are required to be applied for considering the maintainability of an appeal under Clause 15 of the Letters Patent:
The learned Single Judge must have exercised original writ jurisdiction as distinguished from appellate jurisdiction, revisional jurisdiction or power of superintendence in order to maintain an appeal under clause 15 of the Letters Patent.
A writ of certiorari lies in appropriate cases against the order of a tribunal or court subordinate to High court where such court or tribunal acts as an authority of first instance but it will not be at all maintainable if such court or tribunal act as appellate or revisional authority. Thus, if an appellate or revisional order of the court or tribunal subordinate to a High Court is sought to be challenged before High Court, the aggrieved party should take the aid of Article 227 alone and not Article 226 of the Constitution.
If a Special Civil Application is filed even with a prayer of certiorari against the order of the court or tribunal which did not exercise original jurisdiction as a court or tribunal of the first instance but exercised an appellate or revisional jurisdiction, such Special Civil Application does not come within the purview of Article 226 of the Constitution for issue of the writ of certiorari nor can refusal of exercise of such jurisdiction be described as passing of order in original writ jurisdiction so as to maintain an appeal under clause 15 of the Letters Patent.
If the Special Civil Application is described as one not only under Article 226 but also under Article 227 of the Constitution of India and the court or tribunal whose order is sought to be quashed is not made party, the application is not maintainable as one for the relief of certiorari in the absence of the concerned tribunal or court as party but the same may be treated as one under Article 227 of the Constitution of India.
If a learned Single Judge in exercise of a purported power under Article 227 of the Constitution sets aside the order of the tribunal or court below and at the same time, the essential conditions for issue of writ of certiorari are absent, no appeal will be maintainable against such order in view of specific bar created under clause 15 of the Letters Patent itself and such order should be challenged only by way of Special Leave Petition before the Supreme Court.
However, if a learned Single Judge in purported exercise of power under Article 226 issues a writ of certiorari although the same is not maintainable for any lawful reason, an appeal under Clause 15 of the Letters Patent would nevertheless be maintainable because an order passed without jurisdiction is also required to be challenged in the same way as if it was passed by a forum with the required jurisdiction.
A combined application under both Articles 226 and 227 of the Constitution of India can be entertainable only when the court fees payable for invoking both the provisions have been paid in aggregate. If such combined application is filed, it is for the office to point out whether court fees payable for invoking both the provisions have been paid or not. If court fees payable for invoking only one of the Articles 226 and 227 have been affixed, the court before dismissing the application on that ground may give option to the petitioner to choose only one of such provisions if he does not pay the balance amount of court fees and the application should be treated accordingly. It is, however, for the court to decide whether the facts of the case justify invocation of original jurisdiction or it is a fit case for exercising supervisory jurisdiction.
42. By applying the above principles to the facts of these cases, we hold that the learned Single Judge really exercised the power under Article 227 of the Constitution because the tribunal below in none of these cases exercised original jurisdiction and thus, the exercise of power of certiorari is not possible. In none of these cases, the learned Single Judge has issued a writ in the nature of certiorari so as to make the order appealable under Clause 15 of the Letters Patent being an order without jurisdiction.
43. We, consequently, hold that these Letters Patent appeals are not maintainable as the tribunal below in these cases passed orders not in exercise of original jurisdiction and as such, this court could be moved only under Article 227 and the learned Single judge also did not pass any purported order of certiorari quashing the proceedings for want of, or inappropriate exercise of, jurisdiction. Moreover, even there was no scope of issuing a writ of certiorari in the proceedings arising out of Letters Patent Appeal nos. 894 and 895 of 2012 in the absence of the tribunal as party in the proceedings. Thus, the nature of the orders passed in those two proceedings was in exercise of Article 227 of the Constitution.
44. The appeals are, thus, dismissed. We make it clear that we have otherwise not gone into merits and dismissal of these appeals will not stand in the way of the appellants in seeking appropriate remedy before appropriate forum in accordance with law.
44.1 In view of the aforesaid order passed in the Appeals, the Civil Applications do not survive and are disposed of accordingly. Notice/Rule if issued, stands discharged.
44.2 In the facts and circumstances, however, there will be no order as to costs.
(BHASKAR BHATTACHARYA,CJ) (J.B.PARDIWALA, J.) mathew FURTHER ORDER After this judgment was pronounced, Mr. Thakore and Mrs. Mehta, the learned counsel appearing on behalf of the appellants in LPA Nos.1219 of 2011 and 1220 of 2011 respectively pray for first, stay of operation of our judgment and secondly, extension of the interim order which was granted at the time of entertaining these two appeals.
We find that in these two matters, a Division Bench while entertaining the appeal granted ex parte interim order restraining the respondents from transferring, alienating or encumbering the properties and from changing the nature and character of the same.
After holding that the appeals are not maintainable, we are of the view that we cannot extend the interim order as the same will amount to passing of an interim order by a Court having no jurisdiction. Secondly, even the nature of interim order that was granted earlier is such that if the interim order is vacated and the appellants succeed before higher forum in the long run, the relief claimed by them will not become infructuous as the appellate court has the power to grant suitable relief with regard to the nature, character and alienation of the properties in question.
Taking into consideration these facts, we find no reason to stay our judgment or extend the interim order earlier granted in those two appeals.
The prayers are, consequently, refused. However, if applied for, the Registry shall issue certified copy of the judgment by tomorrow.
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