Back
HIGH COURT OF CALCUTTA
CHAKRABARTI, DAS, BANERJEE, DAS GUPTA, S. R. DAS GUPTA
CHAIRMAN, BUDGE BUDGE MUNICIPALITY - Appellant
Versus
MONGRU MIA - Respondent
A. F. O. O. 77 Of 1951
Decided On : SEPTEMBER 10, 1952
Whether an appeal lies to the High Court itself from a judgment of a single Judge of the Court, given under Article 226 of the Constitution. Whether a judgment given by a single Judge under Article 226 of the Constitution is a judgment pursuant to Section 108 of the Government of India Act, 1915, or at the most, at the date of the Constitution, pursuant to Section 223 of the Act of 1935. Whether a judgment given in exercise of the jurisdiction conferred by Article 226 is a judgment within the meaning of Clause 15 of the Letters Patent of the Calcutta High Court. Whether the jurisdiction conferred by Article 226 is a new jurisdiction or there has been mere extension of power, the jurisdiction having been already vested in the High Courts.
Fact of the Case:
The Budge Budge Municipality passed a resolution and issued a notice to the respondents, who were beef-shop owners, that no license for slaughtering or for sale of beef or flesh of buffaloes etc. would be issued henceforth. The respondents filed an application under Article 226 of the Constitution for an order on the Commissioners of the Budge Budge Municipality to forbear from giving effect to the resolution and to cancel or recall the notice. Bose J. held that the resolution and the notice were ultra vires and mala fide and constituted a violation of the fundamental right of the petitioners, guaranteed by Article 19 (1) (G) of the Constitution. He made an order cancelling the resolution of 24-2-1950 and the notice dated 27-2-1950, directing the Commissioners to forbear from giving effect to the resolution and the notice and directing them further to determine the applications for renewal of the licenses according to law. The Commissioners appealed.
Finding of the Court:
The Court held that an appeal lies to the High Court itself from a judgment of a single Judge of the Court, given under Article 226 of the Constitution. The Court also held that a judgment given by a single Judge under Article 226 of the Constitution is a judgment pursuant to Section 108 of the Government of India Act, 1915, or at the most, at the date of the Constitution, pursuant to Section 223 of the Act of 1935. The Court further held that a judgment given in exercise of the jurisdiction conferred by Article 226 is a judgment within the meaning of Clause 15 of the Letters Patent of the Calcutta High Court. The Court also held that the jurisdiction conferred by Article 226 is a new jurisdiction.
Issues: Whether an appeal lies to the High Court itself from a judgment of a single Judge of the Court, given under Article 226 of the Constitution. Whether a judgment given by a single Judge under Article 226 of the Constitution is a judgment pursuant to Section 108 of the Government of India Act, 1915, or at the most, at the date of the Constitution, pursuant to Section 223 of the Act of 1935. Whether a judgment given in exercise of the jurisdiction conferred by Article 226 is a judgment within the meaning of Clause 15 of the Letters Patent of the Calcutta High Court. Whether the jurisdiction conferred by Article 226 is a new jurisdiction or there has been mere extension of power, the jurisdiction having been already vested in the High Courts.
Ratio Decidendi: The Court held that an appeal lies to the High Court itself from a judgment of a single Judge of the Court, given under Article 226 of the Constitution. The Court also held that a judgment given by a single Judge under Article 226 of the Constitution is a judgment pursuant to Section 108 of the Government of India Act, 1915, or at the most, at the date of the Constitution, pursuant to Section 223 of the Act of 1935. The Court further held that a judgment given in exercise of the jurisdiction conferred by Article 226 is a judgment within the meaning of Clause 15 of the Letters Patent of the Calcutta High Court. The Court also held that the jurisdiction conferred by Article 226 is a new jurisdiction.
Final Decision: The appeal was allowed in part. The judgment and order of the learned Judge, in so far as they deal with and direct the cancellation of the resolution of 24-2-1950, were set aside and the rest of the judgment and order were maintained.
( 1 ) THIS is an appeal under Clause 15 of the Letters Patent against a judgment and order of Bosc J. by which the-learned Judge held a certain resolution adopted by the Commissioners of the Budge Budge Municipality and a notice served on the respondents in pursuance of that resolution to be both invalid and directed their cancellation under Article 226 (1) of the Constitution of India. The learned Judge also directed the Commissioners to determine according to law the applications made by the respondents for renewal of their licenses. Against that decision the Commissioners have, by their Chairman, appealed.
( 2 ) THE appeal came up for hearing in the first instance before a Division Bench constituted of S. R. Das Gupta J. and myself when two questions of general importance were raised on behalf of the respondents. The Budge Budge Municipality exercises jurisdiction in an area which lies outside the ordinary original civil jurisdiction of this Court. It was contended that no appeal lay from a decision of a single Judge, given on an application under Article 226 of the Constitution, at any rate in a matter coming from outside the original jurisdiction. It was contended in the second place that the present appeal was barred by limitation. The judgment of Bose J. was delivered on 16-3-1951, but the appeal was not filed till 5th June following. It was contended that the period of limitation was 20 days from the date of the order under Article 151 of the Limitation Act and therefore the appeal was time-barred.
( 3 ) AS these questions might arise in any appeal against an order made under Article 226 and a large number of such appeals were pending, the Division Bench thought that they ought to be decided finally by a larger Bench. Thereafter I constituted the present Special Bench and directed all appeals from orders made under Article 226, which were ready for hearing, to be placed before it so that alt parties might make their submissions on the two preliminary points. The appeals placed before us included both appeals arising out of matters which had taken place within the ordinary original civil jurisdiction of the Court and appeals arising out of matters which had taken place outside. We had thus the advantage of hearing the questions argued from all possible points of view and in their relation to all possible sets of circumstances, except that we had no case involving a purely criminal matter.
( 4 ) IT will be convenient to deal first with the two general questions before entering upon the special facts of the present case.
( 5 ) THE first question is whether an appeal lies to the High. Court itself from a judgment of a single Judge of the Court, given under Article 226 of the Constitution. The Constitution provides for no appeal within the High Court, but merely empowers the High Court to issue directions, orders or writs, including writs of certain specified kinds, for the enforcement of the fundamental rights or for any other purpose. It was accordingly contended that when a single Judge dealt with an application under Article 226, he dealt with it as the High Court and after he had so dealt with it, there was no warrant for the High Court itself dealing further with it by way of hearing an appeal. The power given by Article 226, it was argued, was given to the High Court and as soon as a Judge of the High Court exercised it, it was exhausted, whether he issued a writ or order or refused to do so. I am unable to accept that contention as sound. It is true that the power given by Article 226 is given to the 'high Court', but in the absence of any special direction in the Constitution as to how the power is to be exercised, it must be exercised by each High Court according to its own rules and to the provisions of its Letters Patent, like any other power given to the High Court in general terms. If a High Court makes a rule that applications under Article 226 shall be heard by one Judge, siting as a
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
