Karnataka High Court
The Management Of Kalpana Theatre, Etc. vs B.S. Ravishankar Major And Others, Etc. on 1 March, 1995
Equivalent citations: AIR1995KANT426, ILR1995KAR768, 1995(2)KARLJ460, AIR 1995 KARNATAKA 426, (1995) ILR (KANT) 768 (1995) 2 KANT LJ 460, (1995) 2 KANT LJ 460
Author: G. T. Nanavati
Bench: Chief Justice
ORDER G. T. Nanavati, C.J.
1. In these three appeals, a common question of law arises as regards their maintainability under Section 4 of the Karnataka High Court Act, 1961 (for short, the 'Act'). The objection raised in this behalf is that they are not appeals from the Judgment or Orders passed by a single Judge in exercise of the original jurisdiction.
2. Section 4 of the Act, provides for an appeal from a judgment, decree, order or sentence passed by a single Judge in the exercise of the original jurisdiction under the Act or under any law for the time being in force, to a Bench consisting of two other Judges of the High Court.
3. What is contended on behalf of the appellants is that the appellants had filed the petitions both under Articles 226 and 227 of the Constitution. It was submitted that in those petitions, the appellants had challenged the orders passed by the Tribunals/ Courts on the ground that they are erroneous and not on the ground that the concerned Court/Tribunal had not functioned within the limits of ils authority. It was submitted that for that reason, the petitions should he treated as petitions filed under Article 226 and not under Article 227 of the Constitution. In support, heavy reliance was placed upon the decision of the Supreme Court in Nagendra Nathv. Commissioner of Hills Division , wherein the Supreme Court has held that the power of superintendence conferred by Art. 227 is to be exercised most sparingly and only in appropriate cases in order to keep the Subordinate Courts within the bounds of their authority and not for correcting mere errors; whereas, under Art. 226, the power of interference may extend to quashing an impugned order on the ground of a mistake apparent on the face of the record. The decisions in the cases of:
(i) Moh. Yunus v. Mohd. Mustaqim, ; (ii) Prabodh Verma v. State of U. P., ; (iii) P. Kasilingam v. PSG College of Technology ; (iv) Raj Kishan Jai v. Tulsi Dass, ; (v) Town House Building Coopt v. Society Ltd. v. Spl. Deputy Commissioner, .
were also referred to.
4. In Waryam Singh v, Amarnath, the Supreme Court has held that the power which is available to the High Court under Art. 227 of the Constitution, is the power of judicial superintendence over the Subordinate Courts and Tribunals. This power is available apart from and independently of the prvisions of other laws conferring revisional jurisdiction on the High Court. This power is intended to be exercised in appropriate cases in order to keep the Sub-ordinate Courts within the bounds of their authority and not for correcting mere errors e.g., when the lower Court realises the legal position correctly, but declines to do what is expected of it to do and thereby refuse to exercise jurisdiction vested in it by law, then insuch a case, the High Court can interfere in exercise of its power under Art. 227 of the Constitution.
5. In Gujarat Steel Tubes Ltd. v. Mazdoor Sabha , the Supreme Court while examining the nature of the jurisdiction of the High Court under Art. 226 of the Constitution made the following observations:
"Broadly stated the principle of law is that the jurisdiction of the High Court under Art. 226 of the Constitution is limited to holding the judicial or quasi-judicial tribunals or administrative bodies exercising the quasi-judicial powers within the leading strings of legality and to see that they do not exceed their statutory jurisdiction and correctly administer the law laid down by the statute under which they act. So long as the hierarchy of officers and appellate authorities created by the statute function within their ambit the manner in which they do so can be no ground for interference. The powers of judicial supervision of the High Court under Art. 227 of the Constitution (as it then stood) are not greater than those under Art. 226 and it must be limited to seeing that a tribunal functions within the limits of its authority (sec Nagen dra Nath Bora v. Commissioner of Hills Division and Appeals,. Assam ). This led to a proposition that in exercising jurisdiction under Art. 226 the High Court is not constituted a Court of appeal over the decision of authorities, administrative or quasi-judicial. Adequacy or sufficiency of evidence is not its meat. It is not the function of a High Court in a petition for a writ under Art. 226 to review the evidence and to arrive at an independent finding on the evidence (See State of Andhra Pradesh v. S. Sreerama Rao, . A Constitution Bench of this Court in P. H. Kalyani v. M/s. Air France, Calcutta , succinctly set out the limits of the jurisdiction of the High Court in dealing with a writ petition. It was said that in order to justify a writ of certiorari it must be shown that an order suffers from an error apparent on the face of the record. It was further pointed out that if the finding of fact is made by the impugned order and it is shown that it suffers from an error of law and not of fact, a writ under Art. 226 would issue, and, while so saying, the decision in Nagendra Nath Bora's case was affirmed."
With reference to the jurisdiction conferred on the High Court under Art. 227 of the Constitution, the Supreme Court in Mohd. Yunus v. Mohd. Mustaqim , has held as under:
"The supervisory jurisdiction conferred on the High Courts under Art. 227 of the Constitution, is limited "to seeing that an inferior Court or Tribunal functions within the limits of its authority", and not to correct an error apparent on the face of the record, much less an error of law. In this case, there was, in our opinion, no error of law much less an error apparent on the face of the record. There was no failure on the part of learned Subordinate Judge to exercise j urisdiction nor did he act in disregard of principles of natural justice. Nor was the procedure adopted by him not in consonance with the procedure established by law. In exercising the supervisory power under Art. 227 the High Court does not act as an Appellate Court or Tribunal. It will not review or reweigh the evidence upon which the determination of the inferior court or Tribunal purports to be based or to correct errors of law in the decision."
White examining the power of supervision of the High Court, exercised through writs of certiorari, the Supreme Court in P. Kasi lingam v. PSG College of Technology , has held as under:
"One is the area of jurisdiction and the qualifications and conditions of its exercise, the other is the observance of law in the course of its exercise. Such writs are obviously intended to" enable the High Court to issue them in grave cases where the subordinate tribunals or bodies or officers act wholly without jurisdiction, or in excess of it, or refuse to exercise a jurisdiction vested in them, or there is an error apparent on the face of the record and such act, omission, error or excess has resulted in manifest injustice. It was rightly observed in Basappa case that a writ of cerliorari will not issue as a cloak of an appeal in disguise. It does not lie to bring up an order or decision for rehearing. It exists to correct error of law when revealed on the face of an order or decision or irregularity or absence of or excess of jurisdiction when, shown.
"12. It is clear beyond doubt that the High Court had transgresed its jurisdiction under Art. 226 of the Constitution by entering upon the merits of the controversy by embarking upon an enquiry into the facts as to whether or not the letter of resignation submitted by the appellant was voluntary..."
In Umaji Keshap Meshram v. Smt. Radhikabai, the Supreme Court was called upon to consider the scope of clause 15 of the Letters Patent (Bombay) which provides for an appeal to the High Court from the judgment of the single Judge, provided it is not an appeal against sentence or order passed or made in the exercise of powers of superintendence under the provisions of S. 107 of the Govt. of India Act, 1915. Examining the nature of jurisdiction under Arts. 226 and 227 of the Constitution, the Supreme Court observed as under:
"These two Articles stand on an entirely different footing. As made abundantly clear in the earlier part of this judgment, their source and origin are different and the models upon which they are patterned are also different. Under Art. 226, the High Courts have power to issue directions, orders and writs to any person or authority including any Government. Under Art. 227 every High Court has the power of superintendence over all Courts and Tribunals throughout the territory in relation to which it exercises jurisdiction. The power to issue writs is not the same as the power of superintendence. By no stretch of imagination can a writ in the nature of Habeas Corpus or Mandamus or quo. warranto or prohibition or certiorari be equated with the power of superintendence. These are writs which are directed against persons, authorities and the State. The power. of superintendence conferred upon every High Court by Art. 227 is a supervisory jurisdiction intended to ensure that subordinate Courts and Tribunals act within the limits of their authority and according to law (See State of_ Gujarat v. Vakhatsinghji Vajesingnji Veghela, and" Ahmedabad Mfg. & Calico Ptg. Co. Ltd. v. Ranitahei Rarnnand, . The orders, directions and writs under Art. 226 are not intended for this purpose and the power of superintendence conferred upon the High Courts by Art. 227 is in addition to that conferred upon the High Courts by Art. 226. Though at the first blush it may seem that a writ of certiorari or a writ of prohibition partakes of the nature of superintendence inasmuch as at times the end result is the same, the nature of the power to issue these writs is different from the supervisory or superintending power under Art. 227. The powers conferred by Arts. 226 and 227 are separate and distinct and operate in different fields. The fact that the same result can at times be achieved by two different processes does not mean that these two processes are the same.
100. Under Art. 226 an order, direction or writ is to issue to a person, authority or the State. In a proceeding under that Article the person, authority or State against whom the direction, order or writ is sought is a necessary party. Under Art. 227 however, what comes up before the High Court is the order of judgment of a subordinate Court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate Court or tribunal has acted within its authority and according to law. .....
...A series of decisions of this Court has firmly established that a proceeding under Article 226 is an original proceeding and when it concerns civil rights, it is an original civil proceeding (See for instance. State of U. P. v. Dr. Vijay Anand Maharaj, , Commr. of Income-tax Bombay v. Ishwarlal Bhagwandas , Ramesh v. Gendalal Motilal Patni , Arbind Kumar Singh v. Nand Kishore Prasad and Ahmedabad Mfg. and Calico Ptg. Co. Ltd. v. Ramtahel Ramnand "
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"It is equally well-settled in law that a proceeding under Art. 227 is not an-original proceeding. In this connection, we need refer to only two decisions of this Court. In Ahmedabad Mfg. and Calico Ptg. Co.'s case, this Court said :
"Art. 227 of the Constitution, no doubt does not confer on the High Court power similar to that of an ordinary Court of appeal. The material part of this Article substantially reproduces the provisions of S. 107 of the Government of India Act, 1915, except that the power of superintendence has been extended by this Article to Tribunals as well. Section 107 according to preponderance of judicial opinion clothed the High Courts with a power of judicial superintendence apart from and independently of the provisions of the other laws conferring on them revisional jurisdiction. The power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate Courts and Tribunals within the bounds of their authority and, not for correcting mere errors. See Waryani Singh v. Amar Nath . Under Art. 226 of the Constitution, it may in this connection be pointed out the High Court does not hear an appeal or a revision that Court is moved to interfere after bringing before itself the record of a case decided by or pending before a Court, a Tribunal or an authority, within its jurisdiction."
6. In Umaji's case , it is further held that where the facts justify a party in filing an application either under Art. 226 or Art. 227 of the Constitution of India 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 Art. 226, and if in deciding the matter, in the final order, the Court gives ancillary directions which may pertain to Art. 226, this ought not to be held to deprive a party of the right of appeal under Cl. 15 of the Letters Patent where the substantial part of the order sought to be appealed against is under Art. 226. This observation is quoted with approval in Sushilabai Laxminarayan Mudliyar v. Nihalchand Waghajibhai Shaha (1993 Supp (1) SCC 11).
7. In Sushilabai's case, the Supreme Court after perusing the writ petition filed in the High Court, held that the grounds taken in the writ petition unmistakably showed that it was a petition under Art. 226 and order passed by the learned single Judge was also under Art. 226. In Umaji's case, it is also held that the relief granted by the learned single Judge clearly indicated that he was exercising jurisdiction under Art. 226 and not under Art. 227 of the Constitution. The aforesaid observations in Umaji's case in Ratnagiri Dist. Central Co-Op. Bank Ltd.'s case 1993 Supp (1) SCC 9, and in Sushilabai's case 1993 Supp (1) SCC 11, clearly indicate which factors would help in deciding whether the petition is under Art. 226 or under Art. 227 of the Constitution.
8. If Section 4 of the Act is examined in the light of the aforesaid decisions of the Supreme Court, it becomes apparent that S. 4 does not provide an appeal against the judgment or order passed by a single Judge of this Court in a petition under Art. 227 and that an appeal will lie only if a judgment or order is passed in a petition under Art. 226. Where a petition is filed both under Arts. 226 and 227, it will have to be considered whether the points raised in the petition arose for adjudication for the first time before the High Court. If the challenge in the petition is with respect to the points already adjudicated upon the subordinate Court or Tribunal, then it will have to be held that supervisory jurisdiction of High Court was invoked and no! the original. The relief prayed for and granted by the Court is also a factor that would indicate whether the petition was filed under Art. 226 or Art. 227. In cases where it can be said that the petition would fall both under Art. 226 and Art. 227 then it would be proper to consider the petition as the one filed under Art. 226 of the Constitution and in those cases, an appeal would lie to a Bench of two Judges under S. 4 of the Act.
9. The appellant of W.A. 994/94 is the original petitioner of W.P. No. 3601 of 1985. Therein, the award passed by the Labour Court in a reference made under S. 10 of the Industrial Disputes Act. 1947 was challenged, oh the ground that the Labour Court was not justified in awarding full backwages to the workmen. Considering the fact that the service of the workmen was terminated in the year 1979, but the reference was made at his instance in 1981, this Court held that it would have been proper to award only 50% back-wages. To that extent the award was modified.
10. Writ Appeal No, 1073 of 1994 is filed against the order passed in W.P. No. 28S75/ 93 wherein the order passed by the Karnataka Appellate Tribunal against the award passed by the Arbitrator was challenged. Before the Tribunal the award was challenged on the ground that even though the appellant had waited from 11AM to 5.30 PM, the arbitralor did not turn up on that day and subsequently, he passed the award in his absence. The award was also challenged on the ground that it was excessive and not based upon the evidence on record. The Tribunal, after verifying the order-sheet on the record, found that the version of the appellant was not believable. Evidence of the Secretary of the respondent-Bank was recorded on the basis of that evidence, the impugned order was passed. The Tribunal, therefore, did not find any substance in the contention raised by the appellant and dismissed the appeal. Before the learned single Judge, finding of the Tribunal that the appellant had not appeared before the arbitrator on 6-1-1992 was challenged. This Court did not find any infirmity in the said finding and therefore dismissed the writ petition.
11. Writ Appeal No. 1583/94 is filed, against the order passed in W. P. No. 5567 of 1994, wherein also, the order passed by the Karnataka Appellate Tribunal, against the award passed by the Deputy Registrar of Cooperative Societies was ' challenged. The award was challenged on merits and the learned single Judge dismissed the petition on the ground that the order passed by the Tribunal did not suffer from any illegality so as to warrant interference under Article 227 of the Constitution.
12. Applying the tests indicated by the decisions of the Supreme Court referred to above, it will have to be held that in all these three cases, the appellant had invoked the supervisory jurisdiction of the High Court and not the original. Therefore, these appeals are not maintainable as they are not directed against a judgment or order passed by the learned single Judge in exercise of the original jurisdiction of the High Court.
13. It may be stated that the learned Counsel appearing for the appellants and the interveners relied upon the decision of this Court in State of Karnataka v. H. Krishnappa ILR 1975 (2) Kar 1015, wherein it has been observed as under:
"The effect of amendment of the High Court Act, 1961, by the Amendment Act, is that on and after 16th July (973, petitions under Art. 226 of the Constitution (except those which relate to issue of a writ in the nature of habeas corpus), petitions under Art. 227 of the Constitution and cases transferred to the High Court under Art. 228 of the Constitution, should be heard and disposed of, in the first instance, by single Judge from whose decisions appeals lie to Division Benches."
Again in paragraph 32 in the aforesaid decision, it has been observed as under:
"In the former High Court of Mysore, between 26th January 1950 and 1st Nov. 1956 and in the new High Court of Mysore (Karnataka) between 1st Nov. 1956 and 16th July 1973, petitions under Arts. 226 and 227 of the Constitution and cases withdrawn by the High Court under Art. 228 of the . Constitution, were heard by Division Benches from whose decisions there were no appeals within the High court. After the Amendment Act, came into force on 16th July 1973, petitions under Art. 226 of the Constitution, except those in regard to issue of writs in the nature of Habeas Corpus, petition under Art. 227 and the cases withdrawn by the High Court under Art. 228, are being heard by single Judges (except when single Judges refer such cases to be heard by Division-Benches) and appeals from such decisions of single Judges are entertained by Division Benches pursuant to Sec. 4 of the High Court Act, 1961."
In that case, the question regarding maintainability of the appeal did not arise and therefore, the observations made in that case will have to be regarded as made on an assumption that such decision or order is otherwise appealable.
14. In the result, all these appeals are dismissed.
15. Appeals dismissed.