Gujarat High Court
Vijaybhai Kantibhai Patel vs Jangleshwar Mahadev Trust & 2 on 4 February, 2015
Bench: Jayant Patel, S.H.Vora
C/LPA/628/2010 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 628 of 2010
In SPECIAL CIVIL APPLICATION NO. 9001 of 2004
==============================================================
VIJAYBHAI KANTIBHAI PATEL....Appellant(s)
Versus
JANGLESHWAR MAHADEV TRUST & 2....Respondent(s)
==============================================================
Appearance:
MR AMIT V THAKKAR, ADVOCATE for the Appellant(s) No. 1
MR CHINTAN DAVE, AGP for the Respondent(s) No. 3
MR A J PATEL, ADVOCATE for the Respondent(s) No. 2
MR MI MERCHANT, ADVOCATE for the Respondent(s) No. 1
1.1
==============================================================
CORAM: HONOURABLE MR.JUSTICE JAYANT PATEL
and
HONOURABLE MR.JUSTICE S.H.VORA
Date : 04/02/2015
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE JAYANT PATEL)
1. When CA No.14210/14 has come up for hearing, we have taken up the main LPA itself for final disposal.
2. The present appeal is directed against the order dated 19.02.2010 passed by the learned Single Judge of this court in SCA No.9001/04, whereby the learned Single Judge for the reasons recorded in the order, has dismissed the petition and has confirmed the order passed by the Revenue Tribunal.
3. We have heard Mr. Sanjanwala with Mr.Thakkar, learned counsel for the petitioner, Mr. Page 1 of 9 C/LPA/628/2010 ORDER Merchant, learned counsel for respondents no.1 and 1/A and Mr.AJ Patel, learned counsel for respondent no.2.
4. It is an admitted position that the subject matter of the main SCA before the learned Single Judge was the order passed by the Gujarat Revenue Tribunal in Appeal No. TEB.A.S/7/99 dated 09.06.2009. The original petitioner had challenged the said order of the Tribunal before this court, but the relevant aspect is that the appeal before the Tribunal was also preferred by the appellantoriginal petitioner. Therefore, the appellant is one who had invoked the jurisdiction of the Tribunal. Therefore, the appellant cannot be heard to say that the Tribunal had no jurisdiction to decide the appeal. Once the Tribunal had the jurisdiction to decide the appeal, the question of issuance of writ of certiorari may not arise.
5. The additional aspect in the present matter is that the Tribunal whose order was under challenge was not impleaded as party respondent in the main Special Civil Application before the learned single Judge. In our view, even the grounds taken in the petition and the contentions raised before the learned Single Judge go to show that they are all as if the petition is for challenging the legality and validity of the order passed by the Tribunal by invoking the jurisdiction of this court under Article 227 of the Constitution.
Page 2 of 9 C/LPA/628/2010 ORDER6. The Larger Bench of this Court in the case of Gujarat State Road Transport Corporation Vs. Firoze M. Mogal and Another reported in 2014(1) GLH (FB) 1 has made the concluding observations at paragraph 254, as under:
"254. In view of our aforesaid analysis, we proceed to record our conclusion in seriatim.
i) A power to issue the writ is original and the jurisdiction exercised is original jurisdiction.
ii) Proceedings under Article 226 of the Constitution of India are in exercise of original jurisdiction of the High Court whereas the proceedings initiated under Article 227 of the Constitution are supervisory in nature.
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.
iv) The power exercised under Article 226 of the Constitution is in exercise of original jurisdiction and not supervisory jurisdiction.
v) Exercise of supervisory power and power of superintendence is not to be equated with the original or supervisory jurisdiction.
vi) 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 Page 3 of 9 C/LPA/628/2010 ORDER Patent.
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 Page 2 of 6 C/LPA/1118/2014 ORDER 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.
viii) The High Court, when exercising jurisdiction to issue a writ of certiorari does not act either as a Court of Appeal or that of Revision and it has no power to correct either findings of fact or even errors of law except where the error of law is patent on the face of the record. The sole function of the Court is to correct the persons or Tribunals exercising judicial or quasi judicial functions when they assume jurisdiction which they do not possess, or when they refuse to exercise jurisdiction which is vested in them by law, or when in the exercise of their jurisdiction they violate principles of natural justice.
ix) The term original jurisdiction as contained in Clause 15 of the Letters Patent should be understood in context with the power of the High Court to issue a high prerogative writ like a writ of certiorari under Article 226 of the Constitution of India. It is that original power to issue a writ under Article 226 of the Constitution Page 4 of 9 C/LPA/628/2010 ORDER of India which makes the proceedings original and the exercise of such power will always be original jurisdiction.
x) If the Special Civil Application is described as one not only under Article 226 of the Constitution, but also under Article 227 of the Constitution of India and the Court or the Tribunal whose order is sought to be quashed, is not made a 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 the Court or Tribunal is not impleaded as a party respondent in the main petition, then by merely impleading such court or tribunal for the first time in the Letters Patent Appeal will not change the nature and character of the proceedings before the learned Single Judge. By merely impleading such a Court or Tribunal for the first time in the LPA, the appeal could not be said to be maintainable, if the proceedings before the learned Single Judge remained in the nature of supervisory proceedings under Article 227 of the Constitution.
xi) If the learned Single Judge, in exercise of a purported power under Article 227 of the Constitution sets aside the order of 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 the specific bar created under Clause 15 of the Letters Patent itself and such an order can be challenged only by way of a Special Leave Petition before the Supreme Court.
To put it very explicitly, take a case where a petition is only under Article 227 of the Constitution of India, invoking superintending powers of the High Court and not under Article 226 of the Constitution of India. After examining the matter, if the Page 5 of 9 C/LPA/628/2010 ORDER court finds substance in the petition and sets aside the Page 3 of 6 C/LPA/1118/2014 ORDER order of an authority, court or a tribunal, then against such an order, an LPA would not lie on the argument that since the court has set aside the order it has decided the matter on merits having found substance in the same.
To put it in other words, once a petition is under Article 227 of the Constitution of India, and while entertaining such a petition under Article 227 of the Constitution of India, if the court allows a petition by setting aside the order impugned, then against such an order no LPA would lie.
xii) If a learned Single Judge, in exercise of a purported power under Article 227 of the Constitution modifies the order of Tribunal/Authority or Court below and thereby partly allows a petition to a certain extent, then in such circumstances, it could not be said that the Court exercised its certiorari jurisdiction and no appeal will be maintainable against such order in view of the specific bar created under Clause 15 of the Letters Patent itself However, if a learned Single Judge, in purported exercise of power under Article 226 of the Constitution of India, issues a writ of certiorari, although the same is not maintainable, an appeal under Clause 15 of the Letters Patent would nevertheless be maintainable against such order. To put it in other words, take a case where a party on his own invokes supervisory jurisdiction under Article 227 of the Constitution of India, and in such a petition, the Court issues a writ of certiorari, then against such an order an LPA would be maintainable.
To put it explicitly clear, take a case where in a petition neither there is a prayer for issue of a writ of certiorari nor Page 6 of 9 C/LPA/628/2010 ORDER the Tribunal/Authority or Court whose order is impugned is impleaded as a party respondent, and despite such being the position, if the Court proceeds to issue a writ of certiorari, then against such an order an LPA would be maintainable.
xiii) 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 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.
xiv) The facts would justify invocation of the original jurisdiction under Article 226 of the Constitution only if all the requisite conditions for issue of a writ of certiorari are made out by the petitioner and the Court concerned is convinced that the Page 4 of 6 C/LPA/1118/2014 ORDER petitioner has been able to point out a serious or a palpable error in the order impugned going to the root of the jurisdiction. In the absence of such a glaring infirmity or an error patent on the face of the record, the party would not be justified in invoking original jurisdiction of the High Court under Article 226 of the Constitution of India for issue of a writ of certiorari.
xv) When a remedy for filing the Revision under Section 115 of the Civil Procedure Code has been expressly barred, then in such a case, a petition under Article 227 of the Constitution of India would lie and not a Page 7 of 9 C/LPA/628/2010 ORDER writ petition under Article 226 of the Constitution of India. When the Parliament has thought fit to restrict the powers under Section 115 of the Code with a definite object, then, under such circumstances an order which is not revisable under Section 115 of the Code of Civil Procedure cannot be challenged by way of filing a Writ Petition under Article 226 of the Constitution invoking extraordinary jurisdiction of the High Court and that too an interlocutory order passed by the Civil Court in a Regular Suit proceedings."
7. If the facts of the present case are examined so far as the subject matter of the petition and the exercise of power by the learned Single Judge, it appears to us that the petition was essentially for all purpose under Article 227 of the Constitution coupled with the aspect that the Tribunal whose order was under challenge was also not impleaded as party.
8. Under these circumstances, keeping in view the above referred observations made by Larger Bench of this Court, the present appeal under Article 15 of the Letters Patent cannot be maintained.
9. Mr.Sanjanwala, learned counsel appearing for the appellant submitted that when the appeal was admitted, the interim relief was granted, but now in view of the Larger Bench decision of this Court in Gujarat State Road Transport Corporation Vs. Firoze M. Mogal (supra), if this Court is inclined to take the view that the appeal is not maintainable, the interim relief granted Page 8 of 9 C/LPA/628/2010 ORDER observing that the transaction if any shall be subject to the further orders of this court be continued.
10. Mr.Patel, learned counsel for respondent no.2 in whose favour the property has been transferred has stated before the Court that his clients are not contemplating to create any additional equity over the property in question and with a view to allay the apprehension, he declared that the status quo as prevailing on today of the title of the property shall be maintained for a period of four weeks.
11. In view of the above, we find that continuation of the interim relief would not be required. Hence, the present appeal is disposed of as not maintainable.
(JAYANT PATEL, J.) (S.H.VORA, J.) bjoy Page 9 of 9