Bombay High Court
Mansaram Sampat Patil Since Deceased ... vs Sambhu Harchand Chaudhary Since ... on 30 June, 2004
Equivalent citations: 2004(4)MHLJ1105
Author: A.P. Deshpande
Bench: S.B. Mhase, A.P. Deshpande
JUDGMENT A.P. Deshpande, J.
1. A common question of law emerges for adjudication in all these Letters Patent Appeals and as such the said appeals are heard together and are being disposed of by this common judgment. The admitted positions of fact which. crystalises the common question are :
(a) The writ petitions from which the present Letters Patent Appeals arise were filed before the learned Single Judge of this Court invoking jurisdiction only under Article 227 of the Constitution of India.
(b) The learned Single Judge in exercise of jurisdiction under Article 227 of the Constitution of India has either allowed or dismissed the writ petitions.
(c) The writ petitions preferred before the learned Single Judge invoked the powers of superintendence under Article 227 of the Constitution of India simpliciter without any mention of Article 226 of the Constitution of India. No grievance of violation of fundamental rights was made and no writ or direction in the like nature was sought.
1A. In the above premise, the following common question emerges for adjudication.
"Whether Letters Patent Appeal filed under clause 15 of the Letters Patent of the Bombay High Court is maintainable against the judgment rendered by the Single Judge of the High Court, in a writ petition invoking jurisdiction under Article 227 of the Constitution of India, before the Division Bench?"
2. Consequent upon preliminary objection, being raised on behalf of the respondents about maintainability of the Letters Patent Appeals, the above question emerges for adjudication. The learned Advocates appearing for the respondents in support of the preliminary objection contended that under clause 15 of the Letters Patent of the Bombay High Court no appeal lies against a judgment delivered by the learned Single Judge in exercise of jurisdiction only under Article 227 of the Constitution of India, as an appeal is expressly barred by clause 15 of the Letters Patent itself. Before we consider the objection raised on behalf of the respondents touching the maintainability of the appeals under Clause 15 of the Letters Patent, it would be appropriate to reproduce clause 15 of the Letters Patent, which reads thus :-
"Appeal to the High Court from Judges of the Court. - And we do further ordain that an appeal shall lie to the said High Court of Judicature at Bombay 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 revisional jurisdiction and not being a sentence or order passed or made in the 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 the 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, made on or after the first day of February one thousand nine hundred and twenty-nine 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."
3. The learned Counsel for the respondents/objectors submit that the issue is concluded way back in the year 1981 when a Special Bench comprising of five Judges of the Bombay High Court disapproved the view taken by the Full Bench in Shankar Naroba Salunke and others vs. Gyanchand Lobhachand Kothari and others and over ruled the Full Bench judgment. The Full Bench in Shankar Naroba Salunke and others vs. Gyanchand Lobhachand Kothari and others recorded the following findings : (1) that the Constitution of India brought about fundamental change in the character of the High Courts which were in existence then (2) that the power exercised by the High Court is exercised finally whether by a Single Judge or by a Division Bench Court. (3) Letters Patent Appeal is not maintainable against a judgment delivered by Single Judge either invoking jurisdiction under Article 226 or under Article 227 of the Constitution of India. The Special Bench recorded its conclusions in para No. 120 of the judgment reported in 1981 Mh.L.J. 93 in the case of State of Maharashtra vs. Kusum wd/o Charudutta and Ors. Justice Madon who delivered the judgment for the Special Bench, after dealing with the history of the Bombay High Court and its jurisdiction, has extensively dealt with the Letters Patent jurisdiction of the High Court. The conclusions No. 25, 29, 32, 33, 34 and 36 are relevant for the decision of the objection raised by the respondents touching the maintainability. Hence, we reproduce the same.
"25. An appeal against the judgment of a Single Judge in a proceeding under Article 227 of the Constitution is expressly barred by clause 15 of the Letters Patent.
29. Clause 15 of the Letters Patent does not exclude a right of appeal against the judgment of a Single Judge in a proceeding under Article 226 of the Constitution.
32. An appeal lies under clause 15 of the Letters Patent against the judgment of a Single Judge in a proceeding under Article 226 of the Constitution.
33. where the facts justify a party in filing an application either under Article 226 or 227 of the Constitution and the party chooses to file his application under both these Articles, the Court ought to treat the application as being one made under Article 226.
34. If in deciding such an application made under Article 226 and 227 of the Constitution, the Court gives in the final order ancillary directions which pertain to Article 227, this would not deprive the party of his 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."
4. What is relevant to note is that after the judgment of the Full Bench in Shankar's case, the aggrieved party had moved the Apex Court by filing an appeal by Special Leave granted by the Supreme Court and during pendency of the Appeal before the Apex Court, on a reference being made, the Special Bench comprising five Judges was constituted by the Chief Justice. The appeal pending against the Full Bench judgment of this Court came up for hearing in the year 1986 by which time besides the Full Bench Judgment, the judgment of the Special Bench too was available for scrutiny before the Apex Court. The main judgment in the said appeal also came to be delivered by the same learned Judge (Justice Madon who delivered the judgment for the Special Bench, of the Bombay High Court) The Supreme Court has approved the view taken by the Special Bench of the Bombay High Court and held in para No. 91 of the judgment thus :
"The position which,, emerges from the above discussion is that under clause 15 of the Letters Patent of the Chartered High Courts, from the judgment (within the meaning of that term as used in that clause) of a single Judge of the High Court an appeal lies to a Division Bench of that High Court and there is no qualification or limitation as to the nature of the jurisdiction exercised by the single Judge while passing his judgment, provided an appeal is not barred by any statute (for example, Section 100A of the Code of Civil Procedure, 1908) and provided the conditions laid down by clause 15 itself are fulfilled. The conditions prescribed by clause 15 in this behalf are : (1) that it must be a judgment pursuant to Section 108 of the Government of India Act of 1915, and (2) it must not be a judgment falling within one of the excluded categories set out in clause 15."
5. The Supreme Court then proceeded to record a finding in para No. 103 of the judgment that an intra court appeal does not lie against the judgment of the learned 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 the Bombay High Court. The relevant observations are reproduced hereinbelow.
"Under Clause 15 of the Letters Patent of the Bombay High Court no intra-Court appeal lay against an "order passed or made in the exercise of the power of superintendence under the provisions of Section 107 of the Government of India Act". By the same process of interpretation by reason of which the phrase "pursuant to Section 108 of Government of India Act" in Clause 15 is to be read as "pursuant to Article 225 of the Constitution of India", the phrase "order passed or made in the exercise of the power of superintendence under the provisions of Section 107 of the Government of India Act" is to be read as "order passed or made in the exercise of superintendence under the provisions of Article 227 of the Constitution". The result is that an 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."
The Supreme Court recorded the final conclusion in para No. 105 of the judgment and the relevant observations are reproduced hereinbelow :
"As we have seen above, an intra-Court appeal against the judgment of a single Judge in a petition under Article 226 is not barred while Clause 15 itself bars an intra-Court appeal against the judgment of a single Judge in a petition under Article 227."
6. While dealing with the Full Bench judgment in Shankar's case, the Apex Court in para No. 107 of the judgment made the following observations:-
"For the reasons aforesaid it must be held that the Full Bench case of Shankar Naroba Salunke vs. Gyanchand Lobhachand Kothari was wrongly decided except for the conclusion reached by the Full Bench that no appeal lies under Clause 15 of the Letters Patent of the Bombay High Court against the judgment of a single Judge of that High Court in a petition under Article 227 of the Constitution but not the reasons given by the Full Bench for reaching this particular conclusion."
7. A short concurring judgment is also delivered by Justice Jeevan Reddy agreeing with the view taken by Justice Madon about non maintainability of an appeal under clause 15 of the Letters Patent challenging a judgment delivered by Single Judge of the Bombay High Court in exercise of jurisdiction under Article 227 of the Constitution. We proceed to reproduce the short judgment delivered by Justice Jeevan Reddy which is in the nature of conclusions and the same reads thus : -
"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 clause 15 of the Letters Patent lies to the High Court against the order of a Single Judge of the High Court exercising jurisdiction under Article 227 of the Constitution, no less and no more. I do not have any doubt that the reference to Section 107 of the Government of India Act 1915, in clause 15 of the Letters Patent must necessarily be read as a reference to Article 227 of the Constitution. So read an appeal under clause 15 is clearly not maintainable against an order made in exercise of the power under Article 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."
For arriving at the conclusion that no Appeal lies, the Apex Court has read Article 227 in place of Section 107 of the Government of India Act, 1915 in clause 15 of the Letters Patent. Similarly, in place of Section 108 appearing in the said clause, the Supreme Court has read Article 225 of the Constitution of India. The interpretative process adopted by the Apex Court is founded on the provision contained in Section 8 of the General Clause Act, 1897, which deals with construction of references to repealed enactments.
8. It is next contended by the learned Counsel for the respondents that Umaji's judgment of the Apex Court is 'Locus Classicus' on the point and the ratio laid down therein is consistently followed in subsequent cases. To demonstrate the same, our attention is invited to the case of Sushilabai Laxminarayan Mudliyar vs. Nihalchand Waghajibhai Shah and Mangalbhai and others vs. Radhyeshyam . True it is that in both these judgments the Apex Court has followed the ratio laid down in Umaji's case but the said judgments do not directly deal with the point in issue. In the said cases the writ petitions were filed under Articles 226 and 227 of the Constitution before the learned Single Judge and the question was about maintainability of the Letters Patent Appeal. The Apex Court found that the petition filed before the learned Single Judge was in substance a writ petition invoking jurisdiction under Article 226 of the Constitution of India and hence concluded that Letters Patent Appeal was maintainable. It may be stated that the Courts have undertaken the exercise to find out whether a Writ Petition is in substance one under Article 226 only when the petition is filed under both the Articles i.e. Articles 226 and 227, and in no other case.
9. It would be appropriate to make a reference to another Full Bench Judgment of this Court in the case of Jagdish Balwantrao Ahhyankar vs. State of Maharashtra. The Full Bench relying on the judgment of the Umaji's case has observed in para No. 23 of the judgment that the party who desires to achieve finality to the litigation may choose to invoke Article 227 simpliciter in which case the intra Court appeal would be expressly barred under clause 15 of the Letters Patent. The Full Bench has held in tune with the law laid down in Umaji's case that it is the choice of the party whether to invoke the jurisdiction of the High Court under Article 227 or under Article 226 and once the said jurisdiction is invoked the jurisdiction exercised by the High Court would be taken to be the one which is invoked by the party. The ultimate conclusions recorded in para No. 30 of the end of the judgment are to the following effect:-
(i) The right to elect or choose a remedy against the order of the subordinate Court or Tribunal, that is, whether to file a petition under Article 226 or under Article 227 or both under Article 226 and Article 227 of the Constitution rests with the party aggrieved by the said order :
(ii) When the party has invoked the jurisdiction of the High Court under Article 226, it is not open to the High Court to exercise jurisdiction under Article 227 of the Constitution when a relief can be granted to the party under the Article invoked. Therefore, there cannot be a test whether the High Court was justified in exercising its powers or the reliefs granted were under Article 227 of the Constitution.
(iii) Where the facts justify filing an application either under Article 226 or under Article 227 and the party chooses to file the application under both these Articles, the Court ought to treat the application as one filed under Article 226 if the substantial part of the order appealed against is under Article 226. If in deciding such an application made under Articles 226 and 227 of the Constitution, the Single Judge of the High Court grants ancillary directions which pertain to Article 227, then by the reason of such ancillary directions being given in the order, the petition should not be treated as one under Article 227, but should be treated as one under Article 226, so that a party is not deprived of his valuable right of an intra-court appeal under Clause 15 of the Letters Patent."
10. All the above referred judgments unequivocally hold that no appeal under clause 15 of the Letters Patent of the Bombay High Court is maintainable against a judgment delivered by the learned Single Judge in exercise of jurisdiction under Article 227 of the Constitution of India.
11. Per contra, the learned Counsel appearing for the appellants repelling the preliminary objection raised by the respondents placed reliance on a judgment reported in AIR 1998 SC 424 in the case of Vanita M. Khanolkar vs. Pragna M. Pai The question that fell for adjudication before the Supreme Court was as to whether an appeal would lie before a Division Bench of the High Court against the order of learned Single Judge rendered by him in a proceeding under Section 6 of the Specific Relief Act, 1963. The learned Single Judge passed an order and decreed the suit. When an appeal was carried to the Division Bench of the High Court against the said order, it was contended on behalf of the respondents that the appeal was not maintainable in view of Sub-Section (3) of Section 6 of the Specific Relief Act. In the said background, the Supreme Court observed that the said provision certainly bars any appeal or revision against any order passed by the Court under Section 6 of the Act. The contention canvassed by the Counsel for the appellant, which according to the Apex Court required consideration was, that even if an appeal would not lie under Sub-Section 3 of Section 6 of the Act by itself against any order passed by the Court under Section 6 of the Act, but as the order passed by the learned Single Judge of the High Court was so passed in exercise of original jurisdiction, Appeal would lie under clause 15 of the Letters Patent which is a charter under which High Court of Bombay functions. The Apex Court held :-
"now it is well settled that 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. No such bar is discernible from Section 6(3) of the Act. It could not be seriously contended by the learned Counsel for the respondents that if Clause 15 of the letters patent is invoked then the order would be appealable. Consequently, in our view on the clear language on Clause 15 of the letters patent which is applicable to Bombay High Court the said appeal was maintainable as the order under appeal was passed by learned Single Judge of the High Court exercising original jurisdiction of the Court."
12. Perusal of the said judgment reveals that Letters Patent jurisdiction of the chartered High Courts is akin to its constitutional powers and hence the same cannot be abridged unless and until a Statute expressly bars a remedy of appeal provided by clause 15 of the Letters Patent. The observations made in the judgment of the Apex Court have no relevance to the dispute in question, for the reason that the exclusion is brought about by clause 15 of the Letters Patent itself and the exclusion is express. Clause 15 by its express words excludes right of an Appeal against the judgment of a Single Judge delivered in exercise of jurisdiction under Article 227 of the Constitution. The exclusion is not by any other Statute.
13. The next judgment on Which reliance is placed by the appellants is in the case of Lokmat Newspapers Private Limited vs. Shankarprasad . By referring to the said judgment, the learned Counsel for the appellants has contended that the label or the form of the petition would not be decisive and it would be necessary to find out from the writ petition as to whether the same really falls under Article 226 or 227 of the Constitution of India. The learned Counsel for the appellants submit that even if wrongly the writ petition is styled as one under Article 227 of the Constitution of India, but if it could be demonstrated that in substance the said writ petition is one under Article 226 of the Constitution of India, then an appeal would lie.
14. The facts in Lokmat Newspaper's case reveal that the writ petition in the said case was filed under Articles 226 and 227 of the Constitution of India, and not only under Article 227. The Apex Court noticed a further fact that no objection was raised by the respondents in the Letters Patent Appeal about the maintainability of the appeal, before a Division Bench. On examination of the said writ petition, the Apex Court further noticed that in para No. 9 of the writ petition it was averred that the impugned orders of the Court below had further resulted in infraction of his fundamental rights guaranteed to him under Articles 14 and 21 and other articles as enshrined in the Constitution of India. Relying on the observations made in para No. 107 of Umaji's case, the Apex Court held that the petition was in substance a writ petition under Article 226 and hence concluded that an appeal would lie under clause 15 of the Letters Patent of Bombay High Court. This judgment in no way supports the case of the appellants.
15. The position of law that emerges from the above referred judgments is that only when a Writ Petition is filed under both articles i.e. Article 226 or 227 of the Constitution of India, the court will examine whether in substance the writ petition is under Articles 226 and 227 of the Constitution and while doing so if the Court finds that the writ petition is in substance was one under article 226 then alone appeal would lie and not otherwise. While examining as to whether the petition is in substance under Article 226 of the Constitution, the Court will have to address itself firstly to the question as to whether was it permissible for the party to file petition under both articles and if it was permissible, the Courts would lean in favour of the petitioner and consequently in favour of the maintainability of the appeal. In case the writ petition is filed under Article 227 simpliciter, no appeal would lie as it is expressly excluded by clause 15 of the Letters Patent. In a petition which is filed under article 227 simpliciter there is no occasion for the Court to examine as to whether the said writ petition is in substance one under Article 226 of the Constitution for the obvious reason that it is for the party to choose a remedy and once a party chooses the remedy, the availability of appellate remedy would depend upon such a choice. Even assuming that such enquiry is permissible, in none of the appeals it has been contended and/or demonstrated that the petition though filed under Article 227 of the Constitution of India is in fact or in substance a petition invoking jurisdiction under Article 226 of the Constitution of India. In none of the writ petitions filed before learned Single Judge, from which these appeals arise, any grievance about violation of fundamental right has been made nor a writ is sought and as such we are of the clear view that they writ petitions filed before the learned Single Judge in the instant appeals were in fact and in substance the writ petitions filed under Article 227 of the Constitution only.
16. No judgment barring one, has been brought to our notice wherein any court has ever entertained a Letters Patent Appeal against a judgment rendered by the learned Single Judge of the High Court while exercising jurisdiction under Article 227 of the Constitution. The reason is obvious that an appeal against a judgment delivered by learned Single Judge in exercise of jurisdiction under Article 227 of the Constitution is expressly barred by clause 15 of the Letters Patent of the Bombay High Court.
17. The only judgment which takes a contrary view is a Division Bench judgment reported in 2002(4) All MR 512 (Coram : B.H. Marlapalle and N.H. Patil, JJ) in the case of Mohammad Hasan Khan vs. Mohammad Majidulla. The said Letters Patent Appeal, the maintainability of which was in question, was directed against a judgment of the learned Single Judge in petition filed under Article 227 of the Constitution of India. While dealing with the preliminary issue of maintainability of Letters Patent Appeal, Division Bench did notice that the writ petition had invoked jurisdiction under Article 227 and not under Article 226 of the Constitution of India. Referring to the judgment of the Apex Court in Lokmat Newspaper's case the Division Bench made following cryptic observations :
".......The said decision, prima facie, appear to support the arguments advanced regarding the maintainability of this appeal." There are no further observations made in the judgment about the ratio laid down by the Apex Court in Lokmat Newspaper's case."
18. We have already distinguished the said judgment in the preceding paragraphs by demonstrating the fact that the said judgment does not take a contrary view than what was taken in Umaji's case for the reason that Umaji's case is followed with approval in the said judgment. The judgment in Lokmat Newspaper's case was rendered in peculiar facts of the said case when the writ petition was filed invoking the jurisdiction under both Articles i.e. Article 226 and Article 227 of the Constitution of India. The grievance was made about violation of fundamental rights before the learned Single Judge. Hence, reference to Lokmat Newspaper's case need not detain us any further. Main reliance is placed by the Division Bench on the observations made in case of Vanita M. Khanolkar vs. Pragna M. Pai and others reported in AIR 1998 SC 424 and to be precise to the following observations :-
"Now it is well settled that any statutory provision barring an appeal or revision cannot cut across the constitutional power of the High Court. Even the power flowing from the paramount charter under which the High Court functions would not get excluded unless statutory enactment concerned expressly excludes the appeal under Letters Patent."
Here again we clarify that we have extensively dealt with the said judgment in the earlier part of our judgment while dealing with the submissions made on behalf of the appellants and distinguished the said judgment. Suffice it to state that Sub-Section (3) of Section 6 of the Specific Relief Act bars an appeal or revision and the Supreme Court was considering the maintainability of the Letters Patent Appeal directed against a judgment/order under Section 6 of the Specific Relief Act passed by the learned Single Judge, hi that context, the Apex Court made the observations relied upon by the Division Bench to the effect that the Letters Patent jurisdiction of the chartered High Courts being akin to its constitutional powers, the same cannot be abridged unless and until a statute expressly bars the remedy of appeal provided by clause 15 of the Letters Patent. The said case pertain to exclusion of Letters Patent jurisdiction by a vague provision (to the extent of exclusion of LPAs) contained in Specific Relief Act which does not expressly bar Letters Patent Appeal As the Apex Court found that Sub-Section (3) of Section 6 of the Specific Relief Act cannot cut down the width of clause 15 of the Letters Patent, it made the said observations. The reliance placed by the Division Bench on the judgment in Vanita Khanolkar's case is wholly misplaced for the obvious reason that the exclusion of appellate remedy in the present appeals is not by any other statute but by the express language used in clause 15 of the Letters Patent itself. Besides the above reasons we have noticed that at least three binding decisions were not brought to the notice of the learned Judges of the Division Bench and the said decisions are Q) Supreme Court judgment in Umaji Keshao Meshram and others vs. Smt. Radhikabai and another , (2) Special Bench decision rendered by five Judges of this Court in the case of State of Maharashtra vs. Kusum waVo Charudatta and others reported in 1981 Mh.L.J. 93 and (3) Full Bench decision in case of Jagdish Balwantrao Abhyankar vs. State of Maharashtra . Hence we hold that the Division Bench judgment reported in 2002(4) AH MR 512 is not a good law to the extent it declares that an appeal directed against the judgment of the learned Single Judge in exercise of jurisdiction under Article 227 of the Constitution of India, is maintainable under clause 15 of the Letters Patent of the Bombay High Court.
19. In view of the discussion made hereinabove, our answer to the question is that the Letters Patent Appeal under clause 15 of the Letters Patent of the Bombay High Court is not maintainable before the Division Bench against the judgment delivered by learned Single Judge of the High Court in exercise of jurisdiction under Article 227 of the Constitution of India.
20. In the result, preliminary objection raised about maintainability of the present appeals has to be accepted and consequence thereof would be rejection of the appeals. The Letters Patent Appeals are dismissed as not maintainable under clause 15 of the Letters Patent of the Bombay High Court. In the circumstances of the case there shall be no order as to costs. Needless to mention that interim relief or ad-interim relief granted and operating, if any, stands vacated.