Karnataka High Court
Ritz Hotels (Mysore) Ltd. vs State Of Karnataka And Ors. on 14 November, 1996
Equivalent citations: ILR1996KAR3445, 1996(7)KARLJ600
Author: R.P. Sethi
Bench: R.P. Sethi, T.S. Thakur
ORDER R.P. Sethi, C.J.
1. On being prima facie satisfied that the law laid down in MANAGEMENT OF KALPANA THEATRE v. RAVISHANKAR, had ignored various provisions of the Karnataka High Court Act, 1961 (hereinafter referred to as 'the Act') a Division Bench of this Court referred this matter to this Bench for authoritative pronouncement.
2. In KALPANA THEATRE'S CASE, a Division Bench of this Court had held that no appeal was maintainable against the judgment or order passed by a Single Judge in petition filed under Article 227 of the Constitution of India and that such appeal was maintainable only if the judgment or order was passed in exercise of the powers under Article 226 of the Constitution of India.
3. We have heard the Learned Counsel for the parties and perused the record. The Learned Counsel for the appellant has submitted that while deciding Kalpana Theatre's case the Division Bench had not taken note of the amended provisions of Sections 9 and 10 of the Act and Rules 2 and 26 of The Writ Proceedings Rules, 1977, (hereinafter referred to as 'the Rules'), read with the Forms appended to the Rules. It is contended that the amendment made in the Karnataka Court Fees and Suits Valuation Act, 1958, was also not taken note of.
4. In order to appreciate the point of law referred to us, it is necessary to have a resume of various provisions of the Act and the Rules. Section 4 of the Act provides that an appeal from a judgment, decree, order or sentence passed by a Single Judge in the exercise of the original jurisdiction of the High Court under this Act or under any law for the time being in force, shall lie to and be heard by a Bench consisting of two other Judges of the High Court. Section 9 of the Act deals with the powers of a Single Judge with respect to the matters specified therein, and Clause (xii) inserted by Act 12/73 provides:
"(xii) exercise of powers under -- (a) Clause (1) of Article 226 of the Constitution of India except where such power relates to the issue of a writ in the nature of HABEAS CORPUS; and
(b) Articles 227 and 228 of the Constitution of India."
The amended Clause (iva) of Section 10 of the Act provides:
"(iva) an appeal from any original judgment, order or decree passed by a Single Judge in exercise of the powers under Clause(1) of Article 226, Article 227 and Article 228 of the Constitution of India."
Rule 2(1) of the Rules provides that every petition under Article 226 and /or Article 227 of the Constitution shall be designated as 'Writ Petition' and be in Form No. 1 appended to the Rules. Every such petition is required to set forth succinctly in chronological order and in consecutively numbered paragraphs all the relevant facts which are said to have given occasion to the petition, the grounds in support of the petition and the relief claimed. Form No. 1 clearly indicates that petitions filed under Articles 226, 227 and 228 of the Constitution are taken cognizance by the Court in its original jurisdiction. Form No. V provides the format of Memorandum of Writ Appeal. Rule 26 of the Rules provides that every appeal filed from an order passed by a Single Judge on a Writ Petition shall be designated as "Writ Appeal', and under Rule 27 a provision has been made for preferring the appeal in the form of a memorandum as per Form No. V.
5. In Kalpana Theatre's Case, various provisions of the Act and the Rules as noted hereinabove were not referred to or taken note of by the Division Bench. The Court 'was persuaded to hold regarding non-maintainability of appeals against judgments or orders passed by the Single Judge under Article 227 of the Constitution of India on the basis of various judgments of the Supreme Court and different High Courts. It is again worthwile to note that in all those matters no provision analogous to the provisions as incorporated in the Act and the Rules was made. On the basis of the judgments cited before it the Division Bench held that as orders passed in petitions filed under Article 227 of the Constitution were not in exercise of the original jurisdiction of the Court no appeal against such an order was maintainable. As we have, noted already, Writ Petitions filed under Articles 226 and 227 of the Constitution in the State of Karnataka are specifically held to be proceedings of the Court under Rule 2 of the Rules in its original jurisdiction. The Amendment Act 12/73 was enacted for a definite purpose of widening the scope of appellate powers of this Court in terms of the report of the Law Commission, and in the statement of objects and reasons it was stated;
"At present all applications under Clause (1) of Article 226 and Articles 227 and 228 of the Constitution of India are dealt with by a Bench of two Judges. In the High Courts of Kerala, Madras, Nagpur, Allahabad, Delhi, Calcutta, Andhra Pradesh and Bombay, such applications are dealt with by a Single Judge and a right of appeal is given to the aggrieved party and such appeals are dealt with by a Bench of two Judges. The Law Ministers' Conference held in 1957 and 1960 was also of the view that such applications should be dealt with by a Single Judge with a right of appeal to a Bench of two Judges. The Law Commission, in its Fourteenth Report Vol. II while considering the question has stated with particular reference to Madras that such a procedure has yielded satisfactory results. As the principles governing the disposal of writ petitions and connected matters have been now sufficiently clarified by the decisions of different High Courts and the Supreme Court, it is considered desirable to empower a single judge to deal with applications under Clause(1) of Article 226 (except where the prayer is for the issue of a writ in the nature of habeas corpus) and applications under Articles 227 and 228 of the Constitution of India with a right of appeal to a Bench of two Judges. It is also considered that this procedure may result in more expeditious disposal of such applications and also provide a right of appeal to the aggrieved party whose right to approach the Supreme Court is very much restricted in view of the Constitution (Thirtieth) Amendment."
It appears that while deciding the KALPANA THEATRE'S Case, , the Division Bench did not take note of an earlier judgment of this Court in STATE OF KARNATAKA v. H. KRISHNAPPA, ILR 1975 Kar 1015 wherein it was held:
"The effect of amendment of the High Court Act, 1961, by the Amendment Act 1973 is that on and after 16th July 1973 petitions under Article 226 of the Constitution (except those which relate to issue of a writ in the nature of habeas corpus), petitions under Article 227 of the Constitution and cases transferred to the High Court under Article 228 of the Constitution shall be heard and disposed of, in the first instance, by single Judge from whose decisions appeals lie to Division Benches."
It is admitted, acknowledged and settled position in law that the right of appeal is the creature of the Statute. Right of appeal is neither natural nor inherent right attached to litigation. A Full Bench of Allahabad High Court in PRATAP NARAIN AGARWAL v. RAGHO PRASAD AND ORS., AIR 1970 Allahabad held that 'the right of appeal being a creature of the Statute its nature and character will have to be determined and controlled by the relevant provisions'. The provisions regarding appeal are required to be construed liberally and not narrowly. The Legislative intention has to be spelt out and gathered from the relevant provisions relating to the right of appeal. Wisdom of Legislature cannot be substituted by the opinion of the Court except in cases where the legislative action is found to be having inherent lack of jurisdiction or contravening the Constitutional provisions.
Even in Kalpana Theatre's case the Division Bench referred to the judgment of the Supreme Court in UMAJI v. RADHIKABAI, and observed: " ...... 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 Article 226 and not under Article 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, clearly indicate which factors would help in decising whether the petition is under Article 226 or under Article 227 of the Constitution.
If Section 4 of the Act is examined in the light of the aforesaid decisions of the Supreme Court it becomes apparent that Section 4 does not provide an Appeal against the judgment or order passed by a Single Judge of this Court in a petition under Article 227 and that an appeal will lie only if a judgment or order is passed in petition under Article 226. Where a petition is filed both under Articles 226 & 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 by the Subordinate Court or Tribunal then it will have to be held that supervisory jurisdiction of the High Court was invoked and not the original. The relief prayed for and granted by the Court is also a factor that would indicate whether the petition was filed under Article 226 or Article 227. In cases where it can be said that the petition would fall both under Article 226 and Article 227 then it would be proper to consider the petition as the one filed under Article 226 of the Constitution and in those cases an appeal would lie to a Bench of two Judges under Section 4 of the Act."
In the instant case also, the Writ Petition was filed both under Articles 226 and 227 of the Constitution. A perusal of the pleadings and the judgment of the Learned Single Judge clearly indicates that in fact and substance the petition was under Article 226 of the Constitution. After referring to the various provisions of law and the judgments as noted hereinabove, we are of the opinion that the Division Bench in Kalpana Theatre's case was not justified in holding that no appeal against an order passed by the Single Judge in a proceeding arising out of a petition filed under Article 227 of the Constitution was maintainable. The scope of Section 4 of the Act in the context of the other provisions of law and particularly the amendment made by Amendment Act 12/73 is admittedly wider than Letters Patent or the Acts of the other States which were referred to or relied upon by the Division Bench in KALPANA THEATRE'S Case. In our opinion, the law laid down in KALPANA THEATRE'S case being contrary to the settled position of law is liable to be overruled. We hold that an appeal against on order passed by a Single Judge in a proceeding arising out of a petition filed under Articles 226, 227 and 228 of the Constitution of India is maintainable. The reference is answered accordingly.
6. The main appeal shall now be listed before the appropriate Bench for final hearing.