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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
RAVI R. TRIPATHI, JAYANT PATEL, M.R. SHAH, J.B. PARDIWALA, A.G. URAIZEE, JJ.
GUJARAT STATE ROAD TRANSPORT CORPORATION - Appellant(s)
Versus
FIROZE M. MOGAL & Anr. - Respondent(s)
LETTERS PATENT APPEAL NO. 1149 of 2002 In SPECIAL CIVIL APPLICATION NO. 5699 of 2001 With CIVIL APPLICATION NO. 11141 of 2013 In LETTERS PATENT APPEAL NO. 1149 of 2002 With LETTERS PATENT APPEAL NO. 259 of 2005 In SPECIAL CIVIL APPLICATION NO. 2967 of 2004 With LETTERS PATENT APPEAL NO. 1839 of 2007 In SPECIAL CIVIL APPLICATION NO. 18188 of 2007 With SPECIAL CIVIL APPLICATION NO. 11124 of 2008 With LETTERS PATENT APPEAL NO. 596 of 2008 In SPECIAL CIVIL APPLICATION NO. 408 of 1993 With LETTERS PATENT APPEAL NO. 101 of 2009 In SPECIAL CIVIL APPLICATION NO. 7069 of 1999 TO LETTERS PATENT APPEAL NO. 104 of 2009 In SPECIAL CIVIL APPLICATION NO. 7074 of 1999 With CIVIL APPLICATION NO. 981 of 2009 In LETTERS PATENT APPEAL NO. 101 of 2009 With CIVIL APPLICATION NO. 982 of 2009 In LETTERS PATENT APPEAL NO. 102 of 2009 With CIVIL APPLICATION NO. 983 of 2009 In LETTERS PATENT APPEAL NO. 103 of 2009 With CIVIL APPLICATION NO. 985 of 2009 In LETTERS PATENT APPEAL NO. 104 of 2009 With LETTERS PATENT APPEAL NO. 1651 of 2009 In SPECIAL CIVIL APPLICATION NO. 13192 of 2008 TO LETTERS PATENT APPEAL NO. 1652 of 2009 In SPECIAL CIVIL APPLICATION NO. 13559 of 2008
Date : 26/12/2013
Held :
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. [Para 243]
(b) Letters Patent - Clause 15 - Appeal - Maintainability - Scope - Learned Single Judge must have exercised original writ jurisdiction under Article 226 of Constitution as distinguished from appellate or revisional jurisdiction or power of superintendence under Article 227 of Constitution - However if an appellate or revisional order of the Court or Tribunal subordinate to High Court suffers from a patent error or Law or jurisdiction, same could be challenged before High Court with the aid of Article 226 and it could not be said same could be challenged with the aid of Article 227 alone.
Held :
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 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 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 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 Court finds substance in the petition and sets aside the 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 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 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 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.
[Para 243]
Law Laid Down :
Proceedings under Article 226 of Constitution are in exercise of original jurisdiction of High Court whereas the proceedings initiated under Article 227 of Constitution are supervisory in nature.
PER : J.B.Pardiwala, J. :-
(For himself and for Hon'ble Ravi R.Tripathi, Jayant Patel, M.R.Shah and A.G.Uraizee, JJ.)
1. This batch of Appeals under Clause 15 of the Letters Patent has been placed before this Special Bench pursuant to the order passed by the Hon’ble the Chief Justice on a reference made by a Division Bench first in point of time on 13th August 2013 while hearing a Letters Patent Appeal No.596 of 2008 arising from a judgment and order passed by a learned Single Judge of this Court in Special Civil Application No.408 of 1993.
2. It appears that the need to refer the matter to a Larger Bench necessitated since the Referring Bench noticed a conflict between the view expressed by a Division Bench of this Court in the case of Revaben Wd/o Ambalal Motibhai, and others v. Vinubhai Purshottambhai Patel and others, reported in 2013(1) GLH 440, and a Full Bench decision of this Court in the case of Dilavarsinhsinh Khodubha Jadeja v. The State of Gujarat and others, reported in 1995(1) GLH 58.
3. In such circumstances referred to above, the Division Bench of this Court framed and referred the following two questions :-
(1) Whether non-consideration of a Full Bench decision of this Court in Dilavarsinh (supra) has materially impacted outcome of the decision of the Division Bench of this Court in the case of Revaben (supra) ?
(2) Whether the Division Bench of this Court in Revaben (supra) has fallen in inadvertent error in observing that the Division Bench decision in the case of Principal, S.V.Doshi Girls' High School (supra) did not consider the decision of the Hon'ble Supreme Court in the case of Udit Narain Singh (supra) ?
4. For the sake of convenience, we may state that the decision in the case of Principal S.V.Doshi Girls' High School and another v. Lilaben Somabhai Gadasa is reported in 2012(2) GLH 428 and the decision of the Supreme Court in the case of Udit Narain is also a reported decision titled as Udit Narain Singh Malpaharia v. Additional Member, Board of Revenue, Bihar and another, reported in AIR 1963 SC 786.
5. It also appears that the Division Bench, while referring the matter to the Larger Bench, vide order dated 13th August 2013, observed that, it would be open to the learned advocate appearing for the parties to get the additional questions (issues) framed before the Larger Bench which, the Larger Bench may answer. It also observed that it would also be open for the Larger Bench to re-frame or recast the questions referred.
6. In such circumstances, the entire appeal was referred on the questions of law as well as on merits, to be decided by the Larger Bench.
7. It was also kept open for the Larger Bench to formulate such other questions which might arise during the course of hearing of the reference, for the effective adjudication of the points involved.
8. It also appears that the first order passed by the Division Bench referring the issue to a Larger Bench was passed in the Letters Patent Appeal No.596 of 2008 referred to above and, thereafter, since identical issues were raised in connection with other appeals also, the same were also referred to the Larger Bench and accordingly the entire batch of appeals has been placed before this Special Bench.
9. For the sake of convenience, we have prepared the following index to the judgment :
Point Description Page No.
A Facts necessitating the Reference. Page 6
B The Questions under Reference
re-framed comprehensively. 11
C Propositions of law as explained in the Page 13
case of Revaben (supra).
D Propositions of Law as explained by the Page 19
Full Bench in the case of Dilavarsinh (supra).
E Submissions of the respective Counsel. Page 22
F What is the meaning of the word ‘writ’ and Page 34
what is ‘a writ of certiorari’ ?
G Power of the High Court under Article 226 Page 49
of the Constitution of India to issue a Writ
of Certiorari.
H Clause 15 of the Letters Patent vis-à-vis the Page 62
term ‘original jurisdiction’.
I Whether this Court unde
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