Gujarat High Court
Naranbhai Jivram Patel vs Naranbhai Jothidas Patel And Anr. on 19 August, 1988
Equivalent citations: AIR1989GUJ181, (1989)1GLR21, AIR 1989 GUJARAT 181
JUDGMENT Shah, J.
1. T his appeal has been directed against the judgment an order dt. 29-3-79 rendered in Special Civil Application No. 174 of 1978. Appellant herein is the original petitioner.
2. A few facts require to be noticed at the outset. In the aforesaid petition, the reliefs claimed, inter alia, were as under : -
"17(a) That Your Lordships will be pleased to issue a writ of or in the nature of certiorari or any other writ, order or direction of setting ,aside the judgment and order dt. 21st Jan., 1978 (Exh. 'E') Passed by the Tribunal constituted under Gujarat Secondary Education Act, 1972 below Exh. 10 in application No. 208 of 1977 and Appeal No. 6 of 1977;
(aa) That Your Lordships will be pleased to issue a writ of or in the nature of certiorari or tiny other writ, order or direction setting aside the judgment and order dt. 2nd May 1978 passed by the Tribunal constituted under the Gujarat Secondary Education Act, 1972 in Application No. 208 of 1977 and Appeal No. 6 of 1977; "
3. The aforesaid petition was filed under Art. 226 of the Constitution. The same came to be rejected on 29-3-79.
4. A preliminary objection has been taken regarding the maintainability of the present appeal.
5. Article 226(1) of the Constitution, as it stood prior to its amendment by the 42nd Amendment Act, 1976 and after its amendment by the 42nd Amendment Act provided as follows :-
Before amendment 226(l) Notwithstanding anything in Art.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 writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any rights conferred by Part III and for any other purpose.
After amendment
226. Power of High Courts to issue certain writs- (1) Notwithstanding anything contained in Art. 32 but subject to the provisions of Art. 131A and Art. 226A, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them
(a) for the enforcement of any of the rights conferred by the provisions of Part III; or
(b) for the redress of any injury of a substantial nature by reason of the contravention of any other provision of this Constitution or any provision of any enactment or Ordinance or of any order, rule, regulation, bye-law or other instrument made there under; or
(c) for the redress of any injury by reason of any illegality in any proceedings by or before any authority under any provision referred to in sub-clause (b) where such illegality has resulted in substantial failure of justice."
It is not necessary to reproduce the other unamended provisions of Art. 226 of the. Constitution. By the aforesaid 42nd Amendment Act, the words "and for any other purpose" were deleted or dropped from the amended Article. In effect, therefore, the jurisdiction of the High Court under Art. 226 after the 42nd amendment Act could be exercised only as under :
(a) for the enforcement of any of the rights conferred by the provisions of Part III, or
(b) for the redress of any injury of a substantial nature by reason of the contravention of any other provision of this Constitution or any provision of any enactment or Ordinance or any order, rule, regulations, bye-law or other instrument made there under; or
(c) for the redress of any injury by reason of any illegality in any proceedings by or before any authority under any provision referred to in sub-clause (b) where such illegality has resulted in substantial failure of justice;
6.The aforesaid 42nd Amendment Act also amended Art.227 of the Constitution as under :-
Before amendment 227(1) Every High Court shall have superintendence over all courts and Tribunals throughout the territories in relation to which it exercises jurisdiction.
After amendment
227. Power of Superintendence over all courts by the High Court - (1) Every High Court shall have superintendence over all courts subject to its appellate jurisdiction.
7. It is not necessary to reproduce for the purpose of this judgment the other unamended provisions of Art. 227 of the Constitution.
8. Thus, by virtue of the 42nd Amendment Act of 1976, the jurisdiction under Art. 227 of Constitution is confined only to powers of superintendence over all courts subject to its appellate jurisdiction. It can thus be seen that both Arts. 226 and 227 of the Constitution underwent changes by virtue of the 42nd Amendment Act, 1976.
9. At this stage, it is pertinent to note that 42nd Amendment Act was brought into force on 1-2-77 and remained in force up to 19-679, when the 44th Amendment Act restored the position.
10. The contention, therefore, was that no appeal was maintainable against the decision in question dated 29-3-79 in view of Clause 15 of the Letters Patent and in view of the aforesaid constitutional position.
11. As analysis of Clause 15 for the Letters Patent clearly brings out that no appeal lies against any-one of the following categories of judgments (1) 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 High Court;
(2) order made in the exercise of revisional jurisdiction; and (3) a sentence or order passed or made in exercise of the power of superintendence the provisions of S. 107 of the Government of India Act (1915) or in the exercise of criminal jurisdiction.
Clause 15 of the Letters Patent provides for an appeal against the judgment of a single Judge of the High Court, unless it falls into one or the other of the aforesaid three categories.
12. In the case of State of U.P. v. Vijay Anand, AIR 1963 SC 946, it has been observed in connection with the power conferred under Art. 226 of the Constitution as under (at p. 951) :-
"It is, therefore, clear from the nature of the power conferred under Art. 226 of the Constitution and the decisions on the subject that the High Court in exercise of its power under Art. 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 jurisdiction, 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 Art. 226 of the Constitution is a continuation of the proceedings under the Act."
It is to be noticed that this was a decision, which was rendered by the Supreme Court prior to the 42nd Amendment Act and at a time when the Art. 226 contained the words '~and for any other purpose-, which words have been deleted by the aforesaid 42nd Amendment Act. It also requires to be noticed that not only Art. 226 underwent a change as stated here in above, but Art. 227 also underwent a change by virtue of the 42nd Amendment Act, as noticed above.
13. In Shanker v. Krishnaji, AIR 1970 SC l which was also a decision rendered prior to the 42nd amendment Act, the Supreme Court has observed as under (Para 6) : -
"Now when the aid of the High Court is invoked on the revisional side- it is done because it is a superior court and it can interfere for the purpose of rectifying the error of the Court below. S. 115 of the Code of Civil Procedure circumscribes the limits of that jurisdiction, but the jurisdiction which is being exercised is a part of the general appellate jurisdiction of the High Court as a superior Court. It is only one of the modes of exercising power conferred by the Statute; basically and fundamentally it is the appellate jurisdiction of the High Court which is being invoked and exercised in a wider and larger sense."
14. A Full Bench of this Court in Patel Kashiram Lavjibhai V. Narottamdas Bechardas, 19 Guj LR 1047 : (AIR 1979 Guj 1), after considering several decisions of the Supreme Court, has drawn the following conclusions in para. 14 of the report :-
(1) The revisional jurisdiction which the High Court exercises is a part of the general appellate jurisdiction of the High Court which it possesses over all courts subordinate to it;
(2) The power of superintendence under Art. 227 of the Constitution, prior to its amendment by 42nd Amendment Act of 1976, was a power of judicial superintendence akin to the power of revision being exercised under S. 115 of the C.P.C. But, after the 42nd Amendment Act, the power under Art. 227 of the Constitution can only be exercised in respect of orders or decisions of subordinate Courts;
(3) An order made by a S ingle Judge of the High Court in exercise of the powers under Art. 226 of the Constitution is neither in exercise of its appellate jurisdiction, nor in the exercise of its revisional jurisdiction. It is in exercise of its extraordinary original jurisdiction;
15. After considering Art. 226 of the Constitution, as it stood prior to the amendment and after its amendment by the 42nd Amendment Act, the Full Bench, inter alia, has also observed as under (AIR 1979 Guj 1 at p. 8) : -
"All that the High Court does in exercise of the jurisdiction under Art. 226 is to see to it, as pointed out by the Supreme Court in Election Commr. v. Venkata Rao, AIR 1953 SC 210 (supra), that any proceedings commenced against the citizens of the country are conformable to the law if a writ of certiorari is to be issued, and if a writ of prohibition is to be issued, it is issued to the inferior tribunals in the States to function within the limits of their respective jurisdictions. It must be pointed out that the power is a power of judicial review in the context in which it has to see to it that the proceedings pending before the Tribunal as well as before any authority constituted under law are in conformity with law, and the proceedings are carried out in accordance with law. The power of superintendence is quite distinct from this power under Art. 226 of the Constitution. It is true, as pointed out by the Privy Council in Ryots of Gasahandho v. Zamindar of Parlakimedi, AIR 1943 PC 164, that a writ of certiorari is an original writ which may issue out of a superior Court requiring that the record of the proceedings in same cause or matter pending before an inferior Court should be transmitted into the superior Court to be there dealt with. The writ is so named because in its original latin form, it required that the King should "be certified" of the proceedings to be investigated and the object is to secure by the exercise of the authority of a superior Court that the jurisdiction of the inferior Tribunal should be properly exercised. This writ does not issue to correct purely executive acts, but on the other hand, its application is not narrowly limited to inferior "courts" in the strictest sense. Broadly speaking, it may be said that if the act done by the inferior body a judicial act, as distinguished from being a ministerial act, certiorari will lie. The remedy, in point of principle, is derived from the superintending authority which the Sovereign's Superior Courts, and in particularly the court of Kings Bench, possess and exercise over inferior jurisdictions. As pointed out by Subha Rao, J. (as he then was) in State of U.P. v. Vijay Anand (AIR 1963 SC 946) (supra) when the framers of the Constitution enacted Art. 226 of the Constitution, what they did was to mould the remedies which the High Court could give under Art. 226 on the pattern of the writs issued by the King's Bench Division. But the words of Art. 226 make it clear that over and above those ancient writs, the High Court can issue directions or orders in the nature of writs to meet with the exigencies of a particular situation; and the High Courts are not confined to mere technicalities of the ancient writs."
16. It has to be recalled at this stage that as per the observations of the Supreme Court in the case of State of U.P. v. Vijay Anand (supra), it is clear that from the nature of the power conferred under Art. 226 of the Constitution and the decisions on the subject that the High Court in exercise of its power under Art. 226 of the Constitution exercises original jurisdiction, and that such jurisdiction, though original in character, as contrasted with its appellate and revisional jurisdiction, is exercisable throughout the territories in relation to which it exercises jurisdiction. In other words, if a case fall under the appellate and revisional jurisdiction of the High. Court, it would not also fall within the aforesaid original jurisdiction exercisable under Art. 226 of the Constitution.
17. We have noted the changes brought about by the 42nd Amendment Act, both in Art. 226 and Art. 227.considering the legislative intent and the dropping of the words "and any other purpose" in Art. 226 of the Constitution and also noting of the words "and tribunals" in 227 of the Constitution after the 42nd Amendment Act, it would seem that the Legislature has taken away the power over Tribunals, which could have been exercised before the 42nd Amendment Act under Art. 227 of the Constitution. This is more so when we also consider the aforesaid dropping of the words "and for any other purpose" in Art. 226(l) of the Constitution where also the aforesaid legislative intent is clear. If both the amendments are considered at the same time, then the conclusion is inescapable that on the one hand the power vis-a-vis Tribunals which had hitherto vested under Art. 227 has been clearly taken away; and on the other, such power cannot be exercised under amended Art. 226 f or the reason that it would not be in exercise of its extraordinary original jurisdiction as per the ratio in Vijay Anand's, (AIR 1963 SC 946) case supra). It is also pertinent to note that the Courts are expected to look at the substance and not the form and mere labelling of a matter as falling under Art. 226 of the Constitution cannot change the nature of the matter, if it otherwise fell under Art. 227 of the Constitution, as it stood prior to the 42nd Amendment Act.
18. When we look at the judgment dt. 29 3-79 passed in Special Civil Application No. 174 of 1978 out of which the present Letters Patent Appeal has arisen, we find that the Managing Trustee and the Principal of a Secondary School had invoked the jurisdiction of this Court under Art. 226 of the Constitution in order to challenge a decision rendered by the Tribunal constituted under the Gujarat Secondary Education Act, 1972. It is, therefore, obvious that the matter did not fall within the purview of the extraordinary original jurisdiction as per the ratio in Vijay Anand's case (supra so that the power could be exercised under Art. 226 of the Constitution. The facts of the case clearly show that the matter fell within the purview of Art. 227 of the Constitution as it stood prior to the 42nd Amendment Act. In that view of the matter, the Letters Patent Appeal is clearly incompetent and not maintainable. The same is, therefore, dismissed accordingly. In the facts and circumstances of the case, there will be no order as to costs.
19. The interim relief will continue for four months.
20. Appeal dismissed.