Orissa High Court
Jyotshna Mohapatra vs State Of Odisha on 9 May, 2018
Author: Vineet Saran
Bench: Vineet Saran
ORISSA HIGH COURT: CUTTACK
WRIT APPEAL No. 202 of 2017
In the matter of an appeal under Clause 10 of the Letters
Patent read with Article 4 of the Orissa High Court Order,
1948 from judgment and order dated 10.03.2017 passed
by the learned Single Judge in W.P.(C) No.9891 of 2008.
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Jyotshna Mohapatra ......... Appellant Versus State of Odisha ......... Respondent For appellant : M/s. R.N. Nayak, N. Sen, C. Sethy and G.N. Rout, Advocates.
For Respondent: Mr. B.P. Pradhan,
Addl. Government Advocate
PRESENT:
THE HON'BLE THE CHIEF JUSTICE MR. VINEET SARAN AND THE HON'BLE DR. JUSTICE B.R.SARANGI Decided on : 09.05.2018 DR. B.R.SARANGI, J. The appellant is the owner of a furniture shop dealing with manufacturing of steel and wooden furniture and supply of sawn sizes wood. The appellant has also obtained registration certificate from the District Industries Centre, Cuttack, as well as licence from 2 the State and Central Sales Tax Department. The appellant procured raw materials for wooden furniture from the local saw mills and from outside the State with genuine documents, such as, cash memo and timber transit permit. On 10.10.2001, the Vigilance and Forest staff conducted raid in the house premises of the appellant and seized wooden furniture and sawn sizes sal wood. Accordingly, a seizure list of furniture pertaining to O.R. Case No.50C of 2001-02 was prepared. Though the appellant was called upon, she could not produce documents in support of storage of sawn sizes wood, for which confiscation proceeding under Section 56 of the Orissa Forest Act, 1972 was initiated against her. the Authorized Officer, after completion of inquiry in the confiscation proceeding, vide order dated 13.06.2006, while directed that the furniture seized to be released in favour of the appellant, held that there was no supporting documents for keeping the seized timbers by the appellant in her house premises and, as such, there was violation of Rules-4, 12, 14 and 21 of the Orissa Timber and Other Forest Produce Transit Rules, 1980 and confiscated the seized timbers.
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2. Being aggrieved by the order dated 13.06.2006 passed by the Authorized Officer under Section 56 of the Orissa Forest Act, 1972, the appellant preferred appeal registered as FAO No.119 of 2006 before the learned District Judge, Cuttack, who, by order dated 10.08.2007, confirmed the order of confiscation issued by the Authorized Officer, holding that the contention of the appellant that she had kept the seized timbers with T.T. permit was contrary to the materials on record and no convincing material was there in support of her contention.
3. Challenging the order dated 10.08.2007 passed by the learned District Judge, Cuttack in FAO No.119 of 2006, the appellant filed W.P.(C) No.9891 of 2008 and after due adjudication the learned Single Judge, vide order dated 10.03.2017, dismissed the writ petition conforming the order of confiscation passed by the Authorized Officer on 13.06.2006, which was also confirmed by the learned District Judge, Cuttack vide order dated 10.08.2007 in FAO No.119 of 2006.
4. Challenging the order dated 10.03.2017 passed by the learned Single Judge, this intra-Court appeal has 4 been filed by the appellant seeking for interference of this Court.
5. Mr. R.N. Nayak, learned counsel for the appellant argued on merits of the case and contended that the order of confiscation passed by the Authorized Officer under Section 56 of the Orissa Forest Act, 1972 confirmed by the learned District Judge in appeal and affirmed by the learned Single Judge in the writ petition should be set aside and the seized timbers should be released in favour of the appellant.
6. Mr. B.P. Pradhan, learned Addl. Government Advocate at the outset raised preliminary objection with regard to maintainability of the writ appeal against the order passed by the learned Single Judge on 10.03.2017 and contended that since the learned Single Judge has passed the order in exercise of power under Article 227 of the Constitution of India, while confirming the order passed by the learned District Judge in FAO No.119 of 2006, the present appeal is not maintainable and, as such, the same is liable to be dismissed.
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7. We have heard Mr. R.N. Nayak, learned counsel for the appellant, as well as Mr. B.P. Pradhan, learned Addl. Government Advocate and perused the record, and also considered the preliminary objection raised by learned Addl. Government Advocate with regard to maintainability of the writ appeal.
8. The question with regard to maintainability of the intra-Court appeal has been considered by the apex Court in Jogendrasinhji Vijaysinghji v. State of Gujarat, (2015) 9 SCC 1 and the apex Court, relying upon the various judgments, held that Article 226 of the Constitution of India confers a power on a High Court to issue writs, orders, or directions mentioned therein for enforcement of any of the rights conferred by Part III or for any other purpose. This is neither an appellate nor a revisional jurisdiction of the High Court. The High Court in exercise of its power under Article 226 of the Constitution exercises original jurisdiction, though the said jurisdiction shall not be confused with the ordinary civil jurisdiction of the High Court. This jurisdiction, though original in character as contrasted with its appellate and revisional 6 jurisdictions, is exercisable throughout the territories in relation to which it exercises jurisdiction and may, for convenience, be described as extraordinary original jurisdiction. If that be so, it cannot be contended that a petition under Article 226 of the Constitution is a continuation of the proceedings under the Act concerned. The order passed by the Civil Court is only amenable to be scrutinized by the High Court in exercise of jurisdiction under Article 227 of the Constitution. Once it is exclusively assailable under Article 227 of the Constitution of India, no intra-Court appeal is maintainable. Jurisdiction under Article 227 is distinct from jurisdiction under Article 226 of the Constitution and, therefore, a letters patent appeal or an intra-Court appeal in respect of an order passed by the learned Single Judge dealing with an order arising out of a proceeding from a civil court would not lie before the Division Bench. No writ can be issued against the order passed by the civil court and, therefore, no letters patent appeal would be maintainable.
9. Where the facts justify a party in filing an application either under Article 226 or 227 of the 7 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, and if in deciding the matter, in the final order, the Court gives ancillary directions which may pertain to Article 227, 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. If the judgment under appeal falls squarely within four corners of Article 227, it goes without saying that intra-Court appeal from such judgment would not be maintainable. On the other hand, if the petitioner has 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. What is important to be ascertained is the true nature of order passed by the learned Single Judge and not what provision he mentions while exercising such powers. A statement by a learned 8 Single Judge that he has exercised power under Article 227, cannot take away the right of appeal against such judgment if power is otherwise found to have been exercised under Article 226. The vital factor for determination of maintainability of intra Court appeal is the nature of jurisdiction invoked by the party and the true nature of principal order passed by the learned Single Judge.
10. Consequently, maintainability of the Letters Patent Appeal would depend upon the pleadings in the writ petition, the nature and character of the order passed by the learned Single Judge, and the type of directions issued, regard being had to the jurisdictional perspectives in the constitutional context. Whether a Letters Patent Appeal would lie against the order passed by the learned Single Judge that has travelled to him from the other tribunals or authorities, would depend upon many a facet. It is clarified that in certain enactments, the District Judges function as Election Tribunals from whose orders a revision or a writ may lie depending upon the provisions in the Act. In such a situation, the superior court, that is, the High Court, even if 9 required to call for the records, the District Judge need not be a party. But how the jurisdiction under the letters patent appeal is to be exercised cannot exhaustively be stated. It will depend upon the Bench adjudicating the lis how it understands and appreciates the order passed by the learned Single Judge and as such, there cannot be a straitjacket formula for the same. But the High Court while exercising jurisdiction under Article 227 of the Constitution has to be guided by the parameters laid down by the Supreme Court. The apex Court in Jogendrasinhji Vijaysinghji (supra) summarised the guidelines in paragrtaph-45, which reads as follows:
"45. In view of the aforesaid analysis, we proceed to summarise our conclusions as follows:
45.1. Whether a letters patent appeal would lie against the order passed by the learned Single Judge that has travelled to him from the other tribunals or authorities, would depend upon many a facet. The court fee payable on a petition to make it under Article 226 or Article 227 or both, would depend upon the rules framed by the High Court.
45.2. The order passed by the civil court is only amenable to be scrutinised by the High Court in exercise of jurisdiction under Article 227 of the Constitution of India which is different from Article 226 of the Constitution and as per the pronouncement in Radhey Shyam v. Chhabi Nath, (2015) 5 SCC 423, no writ can be issued against the order passed by the civil court and, 10 therefore, no letters patent appeal would be maintainable.
45.3. The writ petition can be held to be not maintainable if a tribunal or authority that is required to defend the impugned order has not been arrayed as a party, as it is a necessary party.
45.4. The tribunal being or not being party in a writ petition is not determinative of the maintainability of a letters patent appeal."
11. This Court had got an occasion to deal with the similar question in Saswati Patras v. Saraswati Biswal, 2016 (II) OLR 3, in which the election to a Member of Zilla Parishad, Puri was under challenge. The question was as to whether under Section 32 of the Zilla Parishad Act, the District Judge has got jurisdiction to try the election petition. While considering the same, this Court held that in an intra-Court appeal, order passed by the Civil Judge is only amenable to be scrutinized by the High Court in exercise of jurisdiction under Article 227 of the Constitution of India. Once it is exclusively assailable under Article 227 of the constitution of India, no intra-Court appeal is maintainable. As such, jurisdiction under Article 227 is distinct from the jurisdiction under Article 226 of the Constitution. A letters patent appeal or an intra-Court appeal in respect of an order passed by the learned Single 11 Judge dealing with the order arising out of proceeding from the civil court would not lie before the Division Bench. No writ can be issued against the order passed by the civil court, and therefore, no letters patent appeal will be maintainable.
12. In Rabindranath @ Rabindranath Jena v. Bijaya Kumar Bhuyan & ors. 2016 (II) ILR -CUT-28, this Court has already taken into consideration the maintainability of the writ appeal, while considering the provisions contained under Section 31 of the Odisha Grama Panchayat Act, 1964, and this Court has taken similar view as has been held by the apex Court in Jogendrasinhji Vijaysinghji (supra) which has also taken note of judgment of the apex Court in Radhey Shyam v. Chhabi Nath, (2015) 5 SCC 423. This Court has also taken similar view in Smt. Swarnaprava Pattnaik @ Das v. Dibakara Satpathy (Dead) through L.Rs. Lilly Satpathy @ Panda and others (Writ Appeal No.346 of 2012) dismissed on 08.12.2016 and Ananda Mohapatra v. Bijay Mohapatra, 2017 (I) ILR CUT 24, holding that since the order was passed by the learned Single Judge in 12 exercise of power under Article 227 of Constitution of India, the writ appeal is not maintainable.
13. Considering the law laid down by the apex Court as well as this Court, as discussed above, we are of the considered view that as the learned Single Judge, while deciding W.P.(C) No. 9891 of 2008, has exercised the jurisdiction under Article 227 of the Constitution of India, the present writ appeal is not maintainable. The preliminary objection raised on behalf of State-respondent is thus answered in its favour. Since we have held that the writ appeal is not maintainable, we are not inclined to enter into the merits of the case.
14. The writ appeal is accordingly dismissed as not maintainable. No order as to cost.
Sd/-
VINEET SARAN CHIEF JUSTICE Sd/-
Orissa High Court, Cuttack
DR. B.R. SARANGI
The 9th May, 2018/Ashok/GDS JUDGE
True Copy
P.A.