2013 Supreme(Guj) 11

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
Hon’ble Mr. Justice Chief Justice Bhaskar Bhattacharya & Hon’ble Mr. Justice J.B. Pardiwala
Revaben WD/o Ambalal Motibhai & Ors.
Versus
Vinubhai Purshottambhai Patel & Ors.
Letters Patent Appeal No. 1220 of 2011—Decided on 15/01/2013

Point in Issue :
Whether an order passed under Article by High Court is appealable under Clause 15 letter patent.

Headnote:Head Note :

       (a) Letters Patent Appeals — Clause 15 — Constitution of India, 1950 — Article 227 — Orders under — LPAs — Maintainability — In all these cases Learned Single Judge did not exercise original jurisdiction, therefore, exercise of power of certiorari is not possible — The Learned Single Judge has not issued a writ in the nature of certiorari so as to make the order appealable under Clause 15 of Letters Patent — Besides even there is no scope of issuing a writ of certiorari in the proceedings arising out of LPA Nos. 894, 895 of 2012 in absence of Tribunal as party in proceedings — Nature of orders passed in the two proceedings was in exercise of Article 227 of Constitution — The appeals are, therefore, not maintainable.

       Held :

       These Letters Patent appeals are not maintainable as the tribunal below in these cases passed orders not in exercise of original jurisdiction and as such, this Court could be moved only under Article 227 and the learned Single Judge also did not pass any purported order of certiorari quashing the proceedings for want of, or inappropriate exercise of, jurisdiction. Moreover, even there was no scope of issuing a writ of certiorari in the proceedings arising out of Letters Patent Appeal Nos. 894 and 895 of 2012 in the absence of the tribunal as party in the proceedings. Thus, the nature of the orders passed in those two proceedings was in exercise of Article 227 of the Constitution. [Para 43]

       The appeals are, thus, dismissed. Court make it clear that Court has otherwise not gone into merits and dismissal of these appeals will not stand in the way of the appellants in seeking appropriate remedy before appropriate forum in accordance with law.

        [Para 44]

       From a plain reading of Clause 15 it is apparent that an appeal against an order passed in exercise of power of superintendence under Article 227 of the Constitution which is equivalent to Section 107 of the Government of India Act, 1935 is specifically prohibited by Clause 15 of the Letters Patent from its operation. [Para 11]

       Any statutory provision barring an appeal or revision cannot cut across the constitutional power of a High Court. Even the power flowing from the paramount charter under which the High Court functions would not get excluded unless the statutory enactment concerned expressly excludes appeals under letters patent. In the same way, in our opinion, if the Letters Patent specifically prohibits the filing of an appeal in a given situation, such appeal cannot, at any rate, be maintainable in derogation of the paramount Charter of the High Court. [Para 11]

       Head Note :

       (b) Writs — Issuance of certain writs — Jurisdiction of high Court — Explained.

       Held :

       (1) Notwithstanding anything in article 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 3[writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.

       (2) The power conferred by Clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories.

       (3) Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is made on, or in any proceedings relating to, a petition under Clause (1), without—

       (a) furnishing to such party copies of such petition and all documents in support of the plea for such interim order; and

       (b) giving such party an opportunity of being heard, makes an application to the High Court for the vacation of such order and furnishes a copy of such application to the party in whose favour such order has been made or the counsel of such party, the High Court shall dispose of the application within a period of two weeks from the date on which it is received or from the date on which the copy of such application is so furnished, whichever is later, or where the High Court is closed on the last day of that period, before the expiry of the next day afterwards on which the High Court is open; and if the application is not so disposed of, the interim order shall, on the expiry of that period, or, as the case may be, the expiry of the said next day, stand vacated.

       (4) The power conferred on a High Court by this article shall not be in derogation of the power conferred on the Supreme Court by Clause (2) of article 32. [Para 8]

       Head Note :

       (c) Constitution of India 1950 — Article 227 — Power of Superintendence over all Courts — Jurisdiction of high Court — Scope.

       Held :

       (1) Every High Court shall have superintendence over all Courts and tribunals throughout the territories in relation to which it exercises jurisdiction.]

       (2) Without prejudice to the generality of the foregoing provisions, the High Court may—

       (a) call for returns from such Courts;

       (b) make and issue general rules and prescribe forms for regulating the practice and proceedings of such Courts; and

       (c) prescribe forms in which books, entries and accounts shall be kept by the officers of any such Courts.

       (3) The High Court may also settle tables of fees to be allowed to the sheriff and all clerks and officers of such Courts and to attorneys, advocates and pleaders practising therein:

       Provided that any rules made, forms prescribed or tables settled under Clause (2) or Clause (3) shall not be inconsistent with the provision of any law for the time being in force, and shall require the previous approval of the Governor.

       (4) Nothing in this article shall be deemed to confer on High Court powers of superintendence over any Court or tribunal constituted by or under any law relating to the Armed Forces. [Para 8]

       At this stage, it will also be appropriate to refer to the fact that under the Gujarat High Court Rules, 1993, the mode of execution of the order passed under Article 226 of the Constitution is different from that of an order passed under Article 227 of the Constitution. Rules 189 to 193 prescribe the mode of execution of an order passed under Article 226 while Rule 194 describes the mode of execution of an order passed under Article 227 of the Constitution. Those Rules are quoted below: [Para 8.1]

       Head Note :

       (d) Letters Patent Appeal — Clause 15 — Appeal under — Maintainability — Tests which are required to be applied for Consideration of maintainability indicated.

       Held :

       1. 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 Patent.

       2. A writ of certiorari lies in appropriate cases against the order of a tribunal or Court subordinate to High Court where such Court or tribunal acts as an authority of first instance but it will not be at all maintainable if such Court or tribunal act as appellate or revisional authority. Thus, if an appellate or revisional order of the Court or tribunal subordinate to a High Court is sought to be challenged before High Court, the aggrieved party should take the aid of Article 227 alone and not Article 226 of the Constitution.

       3. If a Special Civil Application is filed even with a prayer of certiorari against the order of the Court or tribunal which did not exercise original jurisdiction as a Court or tribunal of the first instance but exercised an appellate or revisional jurisdiction, such Special Civil Application does not come within the purview of Article 226 of the Constitution for issue of the writ of “certiorari” nor can refusal of exercise of such jurisdiction be described as passing of order in “original writ jurisdiction” so as to maintain an appeal under Clause 15 of the Letters Patent.

       4. If the Special Civil Application is described as one not only under Article 226 but also under Article 227 of the Constitution of India and the Court or tribunal whose order is sought to be quashed is not made 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.

       5. If a learned Single Judge in exercise of a purported power under Article 227 of the Constitution sets aside the order of the 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 specific bar created under Clause 15 of the Letters Patent itself and such order should be challenged only by way of Special Leave Petition before the Supreme Court.

       6. However, if a learned Single Judge in purported exercise of power under Article 226 issues a writ of certiorari although the same is not maintainable for any lawful reason, an appeal under Clause 15 of the Letters Patent would nevertheless be maintainable because an order passed without jurisdiction is also required to be challenged in the same way as if it was passed by a forum with the required jurisdiction.

       7. 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 such combined application is filed, it is for the office to point out whether Court fees payable for invoking both the provisions have been paid or not. 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. [Para 41]

       Law Laid Down :

       A plain reading of Clause 15 letters Patent clearly shows that an appeal against an order passed in exercise of power of Superintendence under Article 227 of Constitution is Specifically prohibited by Clause 15 of the Letters Patent from its operation.