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Municipal Corporation of Delhi Vs. Tyagi Anani and Company (P) Ltd. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtDelhi High Court
Decided On
Case NumberLetter Patent Appeal No. 63 of 1971
Judge
Reported inILR1972Delhi804
ActsConstitution of India - Article 227
AppellantMunicipal Corporation of Delhi
RespondentTyagi Anani and Company (P) Ltd.
Advocates: Tara Chand Brijmohan Lal and; Y.K. Sabharwal, Advs
Cases ReferredSukhendu Bikash Barua v. Hare Krishna De
Excerpt:
.....of the high courts of lahore, punjab and delhi, clause 10 corresponding to letters patent of the high courts of calcutta, bombay and madras, clause 15--orders passed under article 227 of the constitution--not appealable under the above clauses of the letters patent.; the appeal was preferred against the order of s single judge dismissing a petition which had been filed before him under section 115 civil procedure code and article 227 of the constitution.; the appeal was not competent under clause 10 of the letters patent which had been issued on 21-3-1919 for the high court of lahore and which since then became applicable to the high courts of punjab and haryana and of delhi because the following orders are excluded there from, namely :--; (1) orders passed in exercise of..........jurisdiction to revise the decisions of provincial courts even prior to the establishment of the high courts under the high courts act, 1861. this jurisdiction was preserved by section 9 of the said act and was later vested in the high courts by section 15 thereof and by subsequent statutes such as the various codes of civil procedure enacted from time to time some of which preceded the issue of the first letters patent. the use of the expression in the letters patent of 1919 was in the same sense in which it was used in clause 15 of the first letters patent which in its turn adopted the sense in which the jurisdiction was vested in the sudder dewani adalat and the supreme court. thus, the expression 'revisional jurisdiction' was not coined by the letters patent to create a new type of.....
Judgment:

V.S. Deshpande, J.

(1) The petition of the respondent made under section 115 of the Code of Civil Procedure and under Article 227 of the Constitution was allowed by a learned Single Judge of this Court. This appeal against the said order is filed under clause 10 of the Letters Patent issued on 2t-3-1919 for the High Court of Lahore since then applicable to the High Court of Punjab and Haryana, and the High Court of Delhi. Clause 10 reads as below :-

'10.And we do further ordain that an appeal shall lie to said High Court of Judicature at Lahore from the judgment (not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court, and not being an order made in the exercise of revisional jurisdiction, and not being a sentence or order passed or made in the exercise oi the power of superintendence under the provision of S. 107 of the Government of India Act, or in the exercise of criminal jurisdiction) of one Judge of the said High Court or one Judge of any Division Court, pursuant to Section 108 of the Government of India Act, and that notwithstanding anything hereinbefore provided, an appeal shall lie to the said High Court from a judgment of one Judge of the said High Court or one Judge of any Division Court pursuant to Section 108 of the Government of India Act, made on or after the first day of February. 1929, in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court, where the Judge who passed the judgment declares that the case is a fit one for appeal, but that the right of appeal from other judgments of Judges of the said High Court or of such Division Court shall be to us. Our heirs or successors in Our or their privy Council as hereinafter provided.'

(2) In So Far as the order appealed against was passed under section 115 of the Code. of Civil Procedure, it was made in exercise of the revisional jurisdiction of this Court and is, thereforee, unappealable. Learned counsel for the appellant, however, urges that insofar as the said order was made under Article 227 of the Constitution, it is appealable firstly because it was not an order made 'in the exercise of revisional jurisdiction' and secondly because it was not 'made in the exercise of the power of superintendence under the provisions of Section 107 of the Government of India Act, 1915' within, the meaning of clause 10. We have, thereforee, to construe these expressions used in clause 10.

(3) By the word 'jurisdiction' we generally understand the power of the Court to entertain and decide a case. This power can. be classified into different types according to the different kinds of cases which could be grouped under these types such as :-

(1) Ordinary original jurisdiction, (2) Extraordinary original jurisdiction, (3) Appellate jurisdiction, (4) Revisional jurisdiction, and so on.

The first three types were considered by the Privy Council in Navivahow v. Turner (L.R. 16 Indian Appeals 156 (1888-89) . There is no exhaustive statutory definition as such of 'revisional jurisdiction'. But its general nature has been always well-understood. In Hari Shankar v. Rao Girdhari Lal Chowdhury, (1962) Supp.lSCR933 at 939. Hidadyatullah. J. observed as follows :-

'THE distinction between an appeal and a revision is a real one. A right of appeal carries with it a right of rehearing on law as well as fact, unless the statute conferring the right of appeal limits the rehearing in some way as, we find, has been done in second appeals arising under the Code of Civil Procedure. The power to hear a revision is generally given to a superior Court so that it may satisfy itself that a particular case has been decided according to law.'

(4) The actual scope of the revisional power given to the Court may differ from statute to statute. For instance, the scope of the language of section 115 Civil Procedure Code is narrower than was the scope of the language of section 35(1) of the Delhi and Ajmer Rent Control Act. 1952 considered by the Supreme Court in Hari Shankar v. Rao Girdhari Lal Chowdilury The ambit of the revisional power given by section 25 of the Provincial Small Cause Courts Act is also wider than the section 115 of the Civil Procedure Code. But the general nature of 'the revisional power as such as contradistinguished from the appellate power is clear as stated in the above Supreme Court decision. On this view the exclusion of orders made in the exercise of revisional jurisdiction from the appeals which can be filed under Clause 10 of the Letter Patent would cover all orders passed by the High Court in its revisional jurisdiction even though the revisional jurisdiction may not be confined to section 115 Civil Procedure Code but may include other statutes and even though the scope of the jurisdiction under each of these statutes may differ in details

(5) Learned counsel for the appellant argues that the Legislature would not have mentioned that orders passed in exercise of the power of superintendence under the provisions of section 107 of the Government of India Act, 1915 are excluded from the appeals which can be filed under clause 10 if these orders could be regarded as made by the High Court in the exercise of 'revisional jurisdiction.' For, it is argued, the order passed under revisional jurisdiction were already excluded by words which preceded the exclusion of orders made in exercise of the power of superintendence under section 107. An elementary rule of interpretation of statutes avoids a construction which would render certain words of the statutes superfluous. If the expression 'revisional jurisdiction' is constructed so widely as to include the superintendence under section 107. then the reference to the superintendence under section 107 would be superfluous. There must, thereforee, be a distinction between revisional jurisdiction and the superintendence under section 107 according to the contention of the counsel turn the appellant. In our view, the reason why clause 10 mentions both the revisional jurisdiction and the superintendence under section 107 is not far to seek. The words ''revisional jurisdiction' are used to describe those powers which are given by statutes expressly as powers of revision. For instance, section 115 Civil Procedure Code, section 25 Provincial Small Cause Courts Act, section 35 of the Delhi and Ajmer Rent Control Act, 1952, all of them expressly confer powers of revision on the High Court.

(6) The first Letters Patent was issued on 14-5-1862 by the famous dispatch of Sir Charles Wood for the High Court of Judicature to be established in Bengal at Calcutta- Clause 15 thereof referred to 'revisional jurisdiction'. This was because the old courts of Sudder Dewani Adalat and the Supreme Court had jurisdiction to revise the decisions of Provincial Courts even prior to the establishment of the High Courts under the High Courts Act, 1861. This jurisdiction was preserved by section 9 of the said Act and was later vested in the High Courts by section 15 thereof and by subsequent statutes such as the various Codes of Civil Procedure enacted from time to time some of which preceded the issue of the first Letters Patent. The use of the expression in the Letters Patent of 1919 was in the same sense in which it was used in clause 15 of the first Letters Patent which in its turn adopted the sense in which the jurisdiction was vested in the Sudder Dewani Adalat and the Supreme Court. Thus, the expression 'revisional jurisdiction' was not coined by the Letters Patent to create a new type of jurisdiction. On the other hand, it described a pre-existing jurisdiction which already was called by that name. In tune with this practice, the statutes conferring this jurisdiction on the High Courts also called it by this name. Apparently, thereforee, the expression 'revisional jurisdiction' in the Letters Patent signified those powers given to the High Courts by statutes which were called 'revisional powers'.

(7) The power of superintendence given by section 107 of the Government of India Act, 1915 was, however, not called a revisional power though it was analogous to revisional power. The expression 'revisional jurisdiction' used in the Letters Patent could have been construed to include the power of superintendence given by section 107 on the ground that the nature of the latter was the same as the former. But till then, the power of revision was always expressly called as 'revision'. It was not called alternatively as power of 'superintendence', it was thought fit, thereforee, to amend the Letters Patent and to add orders passed in exercise of the power of superintendence to the orders passed in exercise of the revisional jurisdiction so that the former also should be excluded from letters patent appeals like the latter. The amendment of the Letters Patent by the mention of the orders passed in exercise of the power of superintendence may thus be said to have been by way of super-abundant caution. It cannot, thereforee, be inferred from this that the nature of superintendence was essentially different from that of revisional jurisdiction.

(8) On the other hand. from the very beginning it is found that the courts have regarded the power of judicial superintendence conferred by section 107 of the Government of India Act, 1915 to be essentially the same as the power of revision. This view was expressed alter a survey of the legislative history by a Division Bench to the calcutta High Court in jahnabi v. Basudeb Pdul, 54 Calcutta Weekly Notes 626. The same conclusion was readied by a Full Bench of the Bombay High Court in Bulkrishna Hari Phansalkar v. Emperor . L.R. 57 Bom 93. In Pushuputi Bhurti v. Secretary of State , also the power to superintendence conferred by section 107 and later taken away by sub-section (2) of section 224 of the Government of India Act, 1935 was regarded as a power of revision. In re v. Tirupulliswamy Naidu : AIR1955Mad287 , Satyanarayana Rao, J., speaking for the Division Bench observed that the jurisdiction under Article 227 of the Constitution (which is the same as it was under section 107 of the Government of India Act, 1915) was revisional jurisdiction as contrasted with the extraordinary original jurisdiction of the High Court under Article 226 of the Coustitution. In Pirthi Singh v. Ram Sukh and others ,(''') it was conceded that the power of superintendence under Article 227 of the Constitution was an exercise of revisional jurisdiction within . the meaning of clause 10 of the Letters Patent and it was so held by the Division Bench. This decision was followed by a Division Bench of this Court in Sri Narain Khanna v. Bhaga Devi (L.P.A. 97 of 1971 decided on 10-5-1971. ).

(9) It is true that the jurisdiction of the High Court under Article 227 of the Constitution is wider than its jurisdiction under section 115 Civil Procedure Code. But it may or may not be wider than the jurisdiction of the High Court under, say, section 25 of the Provincial Small Cause Courts Act or Section 35 of the Delhi and Ajmer Rent Control Act. 1952. The point to remember is not the details of the statutory power under each of these provisions but the nature of the said power. The essential nature of the power is supervisory or revisional as contrasted with the appellate power. As observed hy the Supreme Court in Satyanarayana Laxminarayan Hegde v. Mallikarjun Bhavanappu Tirumale Air : [1960]1SCR890 'Article 227 corresponds to section 107 of the Government of India. Act, 1915. . . . However wide it may be than the provisions of section 115 of the Code of Civil Procedure, it is well-established that the High Court cannot in exercise of its power under that section assume appellate powers to correct every mistake of law'. In Waryam Singh v. Amarnath. : [1954]1SCR565 , the Supreme Court observed that 'the power of superintendence conferred by Article 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'. This is also the object of the revisional power as distinguished from the appellate power. We are of the view, thereforee, that the power of superintendence conferred by section 107 of the Government of India Act, 1915 on the High Courts has always been a power in tile nature of 'revisional jurisdiction' within the meaning of clause 10 of the Letters Patent. As observed by the Supreme Court in Satyanarayana v. Mallikarjuna, the power of superintendence exercised by the High Courts under Article 227 of the Constitution corresponds to the same power which was conferred on the High Courts by section 107 of the Government of India Act. 1915. thereforee, orders passed by the High Courts under Article 227 would be orders passed in exercise of the revisional jurisdiction within the meaning of clause 10 of the Letters Patent. For this reason, the order appealed against in the present case is excluded from the appeals which can be entertained under clause 10.

(10) If it is assumed for the sake of argument that the expression 'revisional jurisdiction' in clause 10 was confined only to those statutory powers which were conferred on the High Courts expressly as 'revisional jurisdiction' and the power of superintendence was not included in the expression 'revisional jurisdiction' used in clause 10 of the Letters Patent, let us examine how this would affect the result of this case. Admittedly, orders passed in exercise of the power of superintendence under section 107 of the Government of India Act, 1915 were made unappealable by clause 10 of the Letters Patent. What was the effect of the repeal of the Government of India Act, 1915-1919 by the Government of India Act. 1935 By and large, the latter re-enacted the former after the said repeal. Section 224 of the Government of India. Act. 1935 corresponded to section 107 of the Government of India Act. 1915. The Letters Patents were not however amended lo substitute the former for the latter. The reason was that sub-section (2) of section 224 of the Government of India Act. 1935 expressly took away the power of judicial superintendence from the High Courts and in this respect it modified the position as it existed under section. 107 of the Government of India Act, 1915. This would not. however. mean that section 224 of the Government of India. Act, 1935 was not a re-enactment of section 107 of the Government of India Act, 1915. Firstly, the administrative superintendence of the High Court over the subordinate courts under section 107 was continued under section 224. Secondly, the subject-matter of the two provisions was substantially the same. Section 107 was. thereforee, substantially re-enacted as section 224. Under section 8 of the General Clauses Act, 1897, any reference to section 107 of the Government of India Act, 1915 in statutes is to be construed as a reference to section 224. On the same principle, the reference -to section 107 in clause 10 of the Letters Patents has to be construed as a reference to section 224 of the Government of India Act. 1935. It is to be noted that section 107 did not expressly confer the power of judicial superintendence on the High Courts but several High Courts construed section 107 to confer such a power on them. The power was, thereforee, a result of judicial decisions and not of the express language of the statute. If that was the source of the power even under section 107 of the Government of India Act, 1915, then it could also he a source of power under section 224 of the Government of India Act, 1935. In fact, in Kavasji Pestonji Dalal v. Rustonji Sorabji jamadar, AIR 1949 Bom 42 Chagla. C.J.. and Tendolkar, J., held that the prohibition under sub-section (2) of section 224 of the Government of India Act. 1935 only referred to the judgments of an inferior court which arc not otherwise subject to appeal or revision to the High Court and that the High Court had still the power of judicial interference in respect of judgments not otherwise subject to appeal or revision even under S. 224. We are not concerned whether the Bombay view is right or wrong. But we would emphasise it the point that section 224 of the Government of India Act, 1935 could be regarded as a re-enactment of section 107 of the Government of India Act. 1915. After all section 8 of the General Clauses Act. 189' applies whether the re-enactment is with or without modifications. It can hardly be denied that section 224 was a re-enactment of section 107 with modifications- Even then the the reference to section 107 in the Letters Patent would have to be read as reference to section 224 of the Government of India Act, 1935 even though the likelihood of appeals being preferred under section 224 was small. Article 395 of the Constitution repealed the Government of India Act, 1935. It is well known that many provisions of the Constitution are based on the provisions of the Government of India Act, 1935 particularly in respect of the structure of the Government and the High Courts. Article 227 re-enacts section 224 of the Government of India Act, 1935 with the modification that sub-section (2) thereof is omitted, the result being that the judicial superintendence which was construed to be given by section 107 of the Government of India Act, 1915 has also been construed to be given by Article 227 of the Constitution. It is to be noted that even under Article 227 the judicial superintendence is not conferred expressly but this power is construed by judicial decisions to be given by Article 227 to the High Courts. Again section 8 of the General Clauses Act. 1897 would have to be applied to construe the reference to section 107 of the Government of India Act, 1915 first to apply to section 224 of the Government of India Act, 1935 and thereafter to apply to Article 227 of the Constitution. For, just as section 224 repealed and re-enacted section 107 similarly Article 227 repealed and re-enacted section 224 within the meaning of section 8 of the General Clauses Act, 1897. The exclusion of the appeals against orders passed under section 107 of the Government of India Act, 1915 in clause 10 of the Letters Patent would have, thereforee, to be construed now to be the exclusion of orders passed by the High Courts under Article 227 of the Constitution. The same conclusion was arrived at by a Division Bench of the Calcutta High Court in Sukhendu Bikash Barua v. Hare Krishna De, : AIR1953Cal636 .

(11) Whether, thereforee, an order passed under Article 227 to the Constitution is regarded as an order passed by the High Court in its original jurisdiction or whether it is regarded as an order passed by the High Court in exercise of the power of judicial superintendence originally conferred on it by section 107 of the Government of India Act, 1915 which was repealed and re-enacted by section 224 of the Government of India Act, 1935 which in its turn repealed and re-enacted by Article 227 of the Constitution, the result is the same, namely, that the present appeal is not maintainable under clause 10 of the Letters Patent. As the appeal fails on this preliminary ground, it is needless to consider it on merits.

(12) The appeal is, thereforee, dismissed but without any order as to costs K.L.B.


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