Gujarat High Court
Mayurbhai Kantibhai Gohil vs State Of Gujarat & on 2 September, 2014
Author: Vijay Manohar Sahai
Bench: Vijay Manohar Sahai, R.P.Dholaria
C/LPA/973/2014 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 973 of 2014
In SPECIAL CIVIL APPLICATION NO. 6090 of 2014
With
CIVIL APPLICATION NO. 9712 of 2014
In
LETTERS PATENT APPEAL NO. 973 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE VIJAY MANOHAR SAHAI
and
HONOURABLE MR.JUSTICE R.P.DHOLARIA
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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 ?
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MAYURBHAI KANTIBHAI GOHIL....Appellant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR NACHIKET A DAVE, ADVOCATE for the Appellant(s) No. 1
MR DIPAL R RAVAIYA, ADVOCATE for the Respondent(s) No. 2
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C/LPA/973/2014 JUDGMENT
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CORAM: HONOURABLE MR.JUSTICE VIJAY MANOHAR
SAHAI
and
HONOURABLE MR.JUSTICE R.P.DHOLARIA
Date : 02/09/2014
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE VIJAY MANOHAR SAHAI)
1. We have heard Mr.Nachiket A.Dave, learned advocate appearing for the appellant and Mr.Dipal R.Ravaiya, learned advocate appearing for the respondent No.2.
2. This Letters Patent Appeal has been filed by the appellant-original petitioner challenging the order dated 25.04.2014 passed in Special Civil Application No.6090 of 2014 whereby the notice has been issued in the writ petition but the request for interim relief has been refused by the learned Single Judge. The order dated 25.04.2014 passed by the learned Single Judge is extracted below:
"Notice returnable on 30.6.2014. In view of the facts of the case, the request for interim relief is refused."
3. The counsel for the respondent No.2 has urged that the Writ Petition and this Letters Patent Appeal are not maintainable as the appellant-original petitioner has filed an application under the Guardians and Wards Act, 1890 (for short the 'Act') and under Section 47 an Appeal from Order would lie to this Court.
4. According to the learned counsel for the appellant, the private respondent-wife of the appellant herein presented the application for seeking interim custody of child before the Learned Additional District Judge, Jamnagar vide Exhibit-22, came to be Page 2 of 7 C/LPA/973/2014 JUDGMENT allowed after conclusion of hearing vide its order dated 7 th April, 2014. As the aforesaid order was essentially under Section 12 of the Guardians and Wards Act, 1890, consequently therefore, no remedy of filing either appeal or revision is provided under the provisions of the Act and the order passed by the Additional District Judge in the aforesaid application Exhibit-22 attains finality under Section 48 of the Act. In that view of the matter, the learned counsel for the appellant has argued that there was no option except to file the writ petition under Article 226 of the Constitution otherwise he would have become remediless.
5. We have carefully considered the argument of the learned counsel for the respective parties and we are of the opinion that the interim order granted or refused under Section 12 of the Act is a final order and attains finality in view of the Section 48 also, and therefore, remedy of the aggrieved person would be in filing a writ petition before this Court and an appeal under Section 47 would not be maintainable.
6. Mr.Dipal Ravaiya, learned advocate for the respondent No.2 then urged that even if the writ petition was maintainable before the learned Single Judge and he has issued notice but has refused to grant interim relief, the Letters Patent Appeal would not be maintainable in view of the Five Judges' Full Bench of this Court in the case of Gujarat State Road Transport Corporation v. Firoze M. Mogal and another, 2014 GLH 1.
7. The question that arises for consideration is as to whether the High Court could entertain the writ in exercise of its original jurisdiction or in exercise of its supervisory jurisdiction. The Guardians and Wards Act is a special statute. It does not provide any remedy of revision. The Provisions of Civil Procedure Code is not applicable to the proceedings under the Guardians and Page 3 of 7 C/LPA/973/2014 JUDGMENT Wards Act and the proceedings are governed by the provision of the Act itself. In such a situation, the High Court exercises powers against a final order passed under the Act in its original jurisdiction and does not exercise any power in supervisory jurisdiction. The Five Judges Full Bench's in the case of Five Judges' Full Bench of this Court in the case of Gujarat State Road Transport Corporation (supra) in paragraph-254 has held as under:
"iii) When a writ is issued under Article 226 of the Constitution, it is issued in exercise of its original jurisdiction whether against the Tribunal or inferior Court or administrative Authority.
vii) A writ of certiorari lies in appropriate cases against the order of Tribunal or Court subordinate to the High Court where such a Court, or Tribunal acts not only as an Authority of first instance but even if such a Court or Tribunal acts as an appellate or revisional Authority provided a case for a writ of certiorari is made out to the satisfaction of the Court concerned. Thus, if an appellate or revisional order of the Court or Tribunal, subordinate to a High Court, suffers from a patent error of law or jurisdiction, the same could be challenged before the High Court with the aid of Article 226 of the Constitution and it could not be said that such an appellate or revisional order of the Court or Tribunal could be challenged with the aid of Article 227 alone."
8. Under the Act, the provisions of Civil Procedure Code had not been made applicable. The High Court exercises powers under Article 226, and not under Article 227 of the Constitution of India. The original writ jurisdiction under Article 226 of the Constitution conferred on the High Court cannot be ousted.
9. For the aforesaid reasons, we are of the opinion that the writ petition was filed before the High Court against the order passed under Section 12 of the Act could be challenged under Article 226 of the Constitution invoking original jurisdiction of the Court. Since the original jurisdiction was invoked the Appeal filed under Clause 15 of the Letters Patent before this Court would be maintainable.
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10. Further now coming to the merits of the case, we find that the learned Additional District Judge granted the application Exhibit-22 and ordered to hand over the custody of minor to the private respondent. After pronouncement of the aforesaid order, he also pleased to suspend the operation, implementation and execution of the order dated 07.04.2014 at Exhibit-22 passed below application at Exhibit-5 in Misc. Civil Application No.86 of 2013 for a further period of 15 days in order to approach higher forum. On filing the writ petition before the learned Single Judge, the appellant argued for the suspension of order passed below -22 pending consideration of the writ petition, though the learned Single Judge has issued the notice but has refused the request to grant interim relief. It is always open to a Court to grant an interim relief or to refuse the interim relief but the Court has to assign the reasons for the same. There may be numerous reasons but some reasons must exist on record for granting or refusing of the interim relief. In absence of any reason, the order becomes vulnerable.
11. It is well settled that while granting and/or refusing interim order, the Court has to assign briefly some reason. The Apex Court in the case of Oryx Fisheries Private Limited v. Union of India and others, (2010) 13 SCC 427 observed in paragraph 40 as under :-
"40. In M/s Kranti Associates (supra), this Court after considering various judgments formulated certain principles in para 51 of the judgment which are set out below :-
(a) In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially.
(b) A quasi-judicial authority must record reasons in support of its conclusions.
(c) Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well.
(d) Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi-
judicial or even administrative power.
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(e) Reasons reassure that discretion has been exercised by the decision maker on relevant grounds and by disregarding extraneous considerations.
(f) Reasons have virtually become as indispensable a component of a decision making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies.
(g) Reasons facilitate the process of judicial review by superior Courts.
(h) The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts. This is virtually the life blood of judicial decision making justifying the principle that reason is the soul of justice.
(i) Judicial or even quasi-judicial opinions these days can be as different as the judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants' faith in the justice delivery system.
(j) Insistence on reason is a requirement for both judicial accountability and transparency.
(k) If a Judge or a quasi-judicial authority is not candid enough about his/her decision making process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism.
(l) Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or `rubber-stamp reasons' is not to be equated with a valid decision making process.
(m) It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision making not only makes the judges and decision makers less prone to errors but also makes them subject to broader scrutiny. (See David Shapiro in Defence of Judicial Candor (1987) 100 Harward Law Review 731-737).
(n) Since the requirement to record reasons emanates from the broad doctrine of fairness in decision making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence. See (1994) 19 EHRR 553, at 562 para 29 and Anya vs. University of Oxford, 2001 EWCA Civ 405, wherein the Court referred to Article 6 of European Convention of Human Rights which requires, "adequate and intelligent reasons must be given for judicial decisions".
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(o) In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement of giving reasons for the decision is of the essence and is virtually a part of "Due Process".
12. We do not find any reasons whatsoever has been given by the learned Single Judge in refusing the interim relief. Therefore, we are of the opinion that the order dated 25.04.2014 so far as refusing the interim relief to the appellant cannot be maintained and deserves to be set aside in part, except issuance of notice.
13. In the result, this Letters Patent Appeal succeeds and is allowed in part. The order dated 25.04.2014 so far as refusing the interim relief is quashed and set aside in part, except issuance of notice. The matter is remanded back to the learned Single Judge to consider the request for granting the interim relief afresh and may pass appropriate reasoned order, expeditiously in accordance with law at an early date, subject to His Lordship's convenience.
14. In view of disposal of appeal, Civil Application No.9712 of 2014 also stands disposed of.
(V.M.SAHAI, J.) (R.P.DHOLARIA,J.) Ashish Tripathi Page 7 of 7