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Patel Kashiram Lavjibhai Vs. Narottamdas Bechardas and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Case NumberLetters Patent Appeal No. 260 of 1977
Judge
Reported inAIR1979Guj1; (1978)GLR1047
ActsConstitution of India - Article 226; Constitution of India (42nd Amendment) Act, 1976
AppellantPatel Kashiram Lavjibhai
RespondentNarottamdas Bechardas and ors.
Appellant Advocate K.G. Sheth, Adv.; Sharad D. Shah and; H.M. Mehta, Ad
Respondent Advocate S.B. Majumdar, Adv.
Cases ReferredNational Telephone Co. v. Postmaster General
Excerpt:
civil - jurisdiction - article 226 of constitution of india and clause 15 of letters patent - appeal against decision of single judge in exercise of jurisdiction under article 226 - appeal against such order not barred under clause 15 of letters patent - decision of single judge cannot be said to be given in exercise of revisional jurisdiction. - - 226 of the constitution would not he, because the decision complained of before the single judge is rendered by a court which has no interest in the subject matter of the decision and is rendered after hearing both the parties, and the decision of the single judge is given in exercise of revisional jurisdiction of the high court. hare krishna air 1958 cal 686, a division bench of the calcutta high court has traced the entire history of the.....divan, c.j. 1. the question which has been referred by the division bench of this court for the decision of the full bench is as follows :'whether an appeal against the decision of a single judge of this high court in the exercise of the jurisdiction of the high court under art. 226 of the constitution is barred under clause 15 of the letters patent (a) because the decision of the single judge can be said to be given in the exercise of revisional jurisdiction of the high court; or (b) it is otherwise barred?'the division bench consisting of two of us (chief justice and d. p. desai, j.) referred this question to the larger bench, because it was felt that the decision of the division bench consisting of s. h. sheth and r. c. mankad. jj. in letters patent appeal no. 303 of 1977 decided on.....
Judgment:

Divan, C.J.

1. The question which has been referred by the Division Bench of this Court for the decision of the Full Bench is as follows :

'Whether an appeal against the decision of a single judge of this High Court in the exercise of the jurisdiction of the High Court under Art. 226 of the Constitution is barred under Clause 15 of the Letters Patent (a) because the decision of the single judge can be said to be given in the exercise of revisional jurisdiction of the High Court; or (b) it is otherwise barred?'

The Division Bench consisting of two of us (Chief justice and D. P. Desai, J.) referred this question to the larger bench, because it was felt that the decision of the Division Bench consisting of S. H. Sheth and R. C. Mankad. JJ. in Letters Patent Appeal No. 303 of 1977 decided on 6-2-1978 : (reported in : AIR1978Guj96 had not taken into consideration two decisions of the Supreme Court, viz. State of Uttar Pradesh v. Vijay Anand : [1962]45ITR414(SC) and Shankar v. Krishnaji : [1970]1SCR322 ; and it was also felt that it was unfortunate that the attention of the learned judges who decided Letters Patent Appeal No. 303 of 1977 : (reported in : AIR1978Guj96 was not drawn to these two decisions of the Supreme Court in State of Uttar Pradesh v. Vijay Anand (supra) and Shankar v. Krishnaji (supra).

2. The Division Bench consisting of S. H. Sheth and R. C. Mankad, JJ. in Letters Patent Appeal No. 303 of I977 : (reported in : AIR1978Guj96 ) held that if there is a judicial decision delivered by any Court or Tribunal and that decision is challenged under Art. 226 of the constitution, the judgment or order of a learned single Judge of this High Court in those proceedings under Art. 226 would be in exercise of the revisional jurisdiction of the High Court and hence a Letters Patent Appeal under Clause 15 of the Letters Patent would not be maintainable. In that decision, the Division Bench consisting of S. H. Sheth and R. C. Mankad. JJ. further held (at P. 100) :-

'In our opinion, a judicial decision is one which is rendered by a Court or an authority which has no interest in the subject matter of the decision and which is rendered after hearing both the parties. In other words, when a Court or an authority, howsoever it might have been described, decides a lis between two contesting parties the decision which it renders is a judicial decision. When such a decision is impugned before the High Court, what the High Court does is to revise it. While doing so. the High Court may confirm it, modify it or quash it. The revisional jurisdiction of the High Court within the meaning of that expression as used in Clause 15 of the Letters Patent embraces within its sweep all judicial orders made by Courts, Tribunals and other authorities howsoever they might have been described. Such a function may be performed by a Tribunal, by the State Government or by an officer of the State Government. Irrespective of who or which authority exercises this jurisdiction if the decision rendered by such an authority or Tribunal is a judicial decision by which the lis or the contest between the parties is decided, the High Court in exercise of its power under Art. 226 does nothing more than to revise that decision. It may quash it or it may confirm it. But essentially the jurisdiction which the High Court exercises is that of revising the judicial decision impugned before it. Therefore, irrespective of whether such a decision has been impugned under Article 227 or Art. 226, none of which makes any references to a right of appeal, appeal against the decision of a learned single judge from such a decision is excluded by Clause 15 of the Letters Patent.'

3. It is, therefore, clear that the Divides Bench consisting of S. H. Sheth and R. C. Mankad, JJ. held that an appeal against a decision of the learned single judge in exercise of the jurisdiction of this Court under Art. 226 of the Constitution would not he, because the decision complained of before the single judge is rendered by a Court which has no interest in the subject matter of the decision and is rendered after hearing both the parties, and the decision of the single judge is given in exercise of revisional jurisdiction of the High Court. In view of the language of Clause 15 of the Letters Patent, the Division Bench hold that the Letters Patent Appeal would not lie because of the clear language of Clause 15 of the Letters Patent which bars an appeal against such a decision of a single judge. It must be observed that this decision of the Division Bench consisting of S. H. Sheth and R. C. Mankad. JJ. was confined only to the exercise of the jurisdiction by a learned single judge under Art. 226 of the Constitution in reference to what may be described as judicial decision whatever may be the authority or Tribunal by which that judicial decision rendered.

4. Clause 15 of the Letters Patent of this High Court provides:

'And we do further ordain that an appeal shall lie to the said High Court of judicature at Bombay 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 exercise of the power of superintendence under the provisions of Section 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 S. 108 of the Government of India Act, and that notwithstanding anything herein before 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 S. 108 of the Government of India Act, made on or after the first day of Feb. 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 of such Division Court shall be to us, or heirs or successors in our or their Privy Council, as hereinafter provided.'

An analysis of the provisions of C1. 15 of the Letters Patent makes it clear that no appeal lies against any one of the following categories of judgments;

(1) 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 High Court,

(2) order made in the exercise of revisional jurisdiction; and

(3) a sentence or order passed or made in exercise of the power of superintendence under the provisions of S. 107 of the Government of India Act (1915), or in the exercise of criminal jurisdiction.

Clause 15 of the letters Patent provides for an appeal against the judgment of a single judge of the High Court; and if an order passed by a learned single Judge, arnounts to 'judgment', an appeal would lie unless the appeal is specifically barred as falling under one or the other of the three categories which have been set out herein above. The rest ot the Provisions regarding certificate in case of Second Appeals are not material for the Purses of this judgment. In the present case, we are concerned only with the two excluded categories viz. (1) an order made in the exercise of revisional jurisdiction; and (2) a sentence Or order passed or made in exercise Of the Power of superintendence under the Provisions of S. 107 of the Government of India Act (1915), cc in the exercise of criminal jurisdiction.

5. In Sukhendu v. Hare Krishna AIR 1958 Cal 686, a Division Bench of the Calcutta High Court has traced the entire history of the letters Patent of the Calcutta High Court, and it is well settled that the Letters Patent of the Bombay High Court which apply to our High Court as well, are on the same lines as the Letters Patent of the Calcutta High Court. As pointed out by Das, J. speaking for the Division Bench in that case, a difference of opinion arose between different High Courts as to whether an appeal would lie from the judgment of a learned judge of any one of three High Courts viz. High Courts of Madras, Bombay and Calcutta sitting singly in a civil Revision case. In consequence of the divergence of opinion between the different High Courts on the question whether an appeal lay under Clause 15 of the Letters Patent against a judgment of a single judge exercising powers of revision, the Letters Patent came to be amended on March 11, 1919, by substituting the words 'not being an order made in exercise of revisional jurisdiction and not being a sentence or order passed or made in exercise of the power of superintendence under the provisions of Section 107 of the Government of India Act, 1915, or in the exercise of criminal jurisdiction' for the words 'not being a sentence or order passed or made in any criminal trial. The Letters Patent was further amended on Dec. 9, 1927; and the words 'pursuant to S. 108 of the Government of India Act' were substituted for the words 'pursuant to Section 13 of the said recited Act'. The meaning of the expression 'pursuant to S. 108 of the Government of India Act' came to be considered by the Special Bench of the Calcutta High Court in Chairman, Budge Budge Municipality v. Mongra Mia : AIR1953Cal433 . It was a case arising out of an application under Art. 226 of the constitution. It was observed by the learned Chief justice of the Calcutta High Court in that case that by virtue, first, of S. 38 (1) of the Interpretation Act, 1889, which applied to the Government of India Act, 1935, and then of Section 8 of the General Clauses Act which applied to the Constitution, the reference to S. 108 of the Government of India Act in Clause 15 of the Letters Patent must be construed as reference to Art. 225 of the Constitution. So far as the present matter is concerned, it is fairly clear that after the amendment of the Letters Patent which came into force on March 11, 1919, it was specifically provided that no appeal lay against an order of a learned single judge made in exercise of

Revisional jurisdiction and again no appeal lay under clause 15 of the Letters Patent against a decision of a learned single judge of the High Court if the order was passed by him in exercise of the power of superintendence under the provisions of S. 107 of the Government of India Act, 1915 or in the exercise of criminal jurisdiction.

6. At this stage, it must be made clear that the power which the High Court exercises under Art. 227 of the Constitution is a power of judicial superintendence over subordinate Courts and Tribunals situated within the State, such a power of judicial superintendence was, for the first time, conferred upon the High Courts by the Indian High Courts Act, 1861. Subsequently power was conferred by S. 107 of the Government of India Act, 1915 and Section 224 of the Government of India Act, 1935. The Supreme Court in Waryam, Singh v. Amaranth : [1954]1SCR565 has held that the power under Art. 227 was a power of judicial superintendence available not only against the decisions of subordinate Courts but also against decisions of all Tribunals functioning within the State over which the High Court exercised jurisdiction.

7. Article 367 of the Constitution in Clause (1) provides:

'Unless the context otherwise requires, the General Clauses Act, 1897 shall, subject to, any adaptations and modifications that may be made therein under Art. - 372, apply for the interpretation of the Constitution as it applies for the interpretation of an Act of the Legislature of the Dominion of India. Section 8(1) of the General Clauses Act provides that where the General Clauses Act or any Central Act or Regulation made after the commencement of the mid Act repeals and re-enact, with or without modification, any provision of a former enactment, then references in any other enactment or In any instrument to the provision so repealed shall, unless a different intention appears, be construed as. references to the provision so re enacted. It is obvious that in the light of Section 8(1) of the General Claus' Act read with Art. 367 (1) of the Constitution, reference to S. 107 of the Government of India Act 1915 in Clause 15 of the Letters Patent has to &e; read as reference to S. 224 of the Government of India Act, 1935 which in its turn was repealed and replaced by Art. 227 of the Constitution. It is, therefore, clear that reference to Section 107 of the Government of India Act, 1915 has now to be read as reference to Art. 227 of the Constitution of India and the second category of excluded appeals under Clause 15 of the Letters Patent has to be read as appeal against a sentence or order passed or made in exercise of the power of superintendence under the provisions of Art. 227 of the Constitution thus it, is obvious that so far as the orders passed or made in exercise of the power under Art. 227 of the Constitution are concerned any order passed by a learned single judge in exercise of such power is not appealable under Clause 15 of the Letters Patent since such an appeal is specifically barred. '

8. Article 226(1) of the Constitution, as it stood prior to its amendment by the 42nd Amendment Act, provided as follows:

'226(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, order or writs, including 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,'

We are not concerned with the rest of the unamended provisions of Art. 226 of the Constitution. As is well known, by the provision of the 42nd Amendment Act of 1976. the words 'and for any other purpose' were deleted or dropped from the amended Article; and after the 42nd Amendment Act, the jurisdiction of the High Court under Art 220 can be exercised only:

'(a) for the enforcement of any of the rights conferred by the provisions of Part III, or

(b) for the redress of any injury of a substantial nature by reason of the contravention of any other provision of this Constitution or any provision of any enactment or ordinance or any order, rule, regulations, bye-law or other instrument made thereunder; or

(c) for the redress of any injury by reason of any illegality in any proceedings by or before any authority under any provision referred to in sub-clause (b) where such illegality has resulted in substantial failure of justice.'

Under unamended Art. 227 i .e. prior to the 42nd Amendment Act of 1976, every High Court had the power of superintendence over all courts and tribunals throughout the territories in relation to which it exercised jurisdiction. However, by Art. 227 as amended by the 42nd Amendment Act of 1976, it has been provided that every High Court shall have superintendence over all courts subject to its appellate jurisdiction. Therefore, by virtue of the 42nd Amendment Act of 1976, the High Court ceased to have power of superintendence in respect of orders and decisions of Tribunals functioning In the territories in relation to which a particular High Court exercises its jurisdiction; and after the 42nd Amendment, the jurisdiction under Art. 227 of the Constitution is confirmed only to powers of superintendence (judicial as well as administrative) over all Courts subject to its appellate jurisdiction.

9. As to what is the exact scope of the powers of the High Court under Art. 226 of the Constitution, in Ahmedabad Mfg. and Calico Ptg. Co. v. Ramtahel : (1972)IILLJ165SC , Dua, J. speaking for the Supreme Court has pointed out in Para. 12 at p. 1603:

'Art. 227 of the Constitution no doubt does not confer on the High Court power similar to that of an ordinary court of appeal. The material part of this Article substantially reproduces the provisions of Section 107 of the Government of India Act, 1915 except that the power of superintendence has been extended by this article to tribunals as well, Section 107 according to preponderance of judicial opinion clothed the High Courts with a power of judicial superintendence apart from and independently of the provisions of the other laws conferring on them revisional jurisdiction. The power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases for the purpose of keeping the subordinate courts and tribunals within the bounds of their authority and not for correcting mere errors : see Waryam Singh v. Amarnath : [1954]1SCR565 . At this stage we consider it proper to refer to some of the judicial pronouncements by this Court with regard to the right of appeal under Art. 133 from interlocutory orders ......Under Art. 226 of the Constitution it may in this connection be pointed out that the High Court does not hear an appeal or a revision; that Court is moved to interfere after bringing before itself the record of a case decided by or pending before court. a tribunal or an authority, within its jurisdiction. A decision in the exercise of this extraordinary jurisdiction which finally disposes of the proceedings is a final order, in an original proceeding. An appeal or a revision on the other hand is generally considered to be a continuation of the original suit or proceeding and in a case, where the High Court deals with an appeal or a revision, finality for the purpose of Article 133 must attach to the whole of the matter so that after the decision of the High Court the matter is not a live one.'

Dua, J. further observed in Para. 18 at p. 1604:

'As such power under Art. 227 may also be exercised suo motu. In the present case Art. 227 appears to us to have been used in effect as a substitute for Art. 226 for seeking a direction in nature of a writ for quashing the orders of the subordinate tribunals. At least it appears that the proceeding before the High Court was so treated by all concerned. We should, however, not be understood to express our approval of the use of Article 227 for seeking relief by way of writs or directions in the nature of writs for which purpose Art. 226 ism expressly and in precise language designed. From that point of view if otherwise the High Court, while disposing of a petition under Art. 227, finally settles some points affecting the rights of the parties then to that extent the impugned order may be considered to operate as a final order just as an order made under Art. 226 would.'

10. In Election Commission v. Venkats Rao : [1953]4SCR1144 Patanjali Sastri C. J speaking for the Supreme Court pointed out in Para 6 at p. 212:

'Turning now to the question as to the, powers of a High Court under Art. 226, it will be noticed that Art 225 continues to the existing High Courts the same jurisdiction and powers as they possessed immediately before the commencement of the Constitution. Though there had been some conflict of judicial opinion on the point. It was authoritatively decided by the Privy Council in Ryots of Garabandho v. Zamindar of Parlakimedi that the High Court of Madras - the High Courts of Bombay and Calcutta were in the same position - had no power to issue what were known as high prerogative writs beyond the local limits of its original civil jurisdiction and the power to issue such writs within, those limits was derived by the Court as successor of the Supreme Court which had been exercising jurisdiction over the presidency town of Madras and was replaced by the High Court established in pursuance of the Charter Act of 1861. The High Courts established in pursuance of the charter act 1861. The other high court in India had no power to issue such writs at all.

In that situation, the makers of the Constitution, having decided to provide for certain basic safeguards for the people in the new set up which they called fundamental rights, evidently thought it necessary to provide also a quick and inexpensive remedy for the enforcement of such rights and, finding that the prerogative writs, which the Courts in England had developed and used whenever urgent necessity demanded immediate and decisive interposition, were peculiarly suited for the purpose, they conferred, in the State's sphere new and wide powers on the High Courts of issuing directions, orders or writs primarily for the enforcement of fundamental rights, the power to issue such directions, etc for any other purpose being also included with a view apparently to place all the High courts in this country in somewhat the same position as the Court of King's Bench in England . But wide as were the powers thus conferred, a two-fold limitation was placed upon their exercise in the first place, the power is to be recognised through out the territories in relation to which it exercises jurisdiction that is to say, the writs issued by the Court cannot be beyond the territories subject to its jurisdiction. Secondly, the person or authority to whom the High Court is empowered to issue such writs must be 'within those, territories, which clearly implies that they must be amenable to its jurisdiction either by residence or location within those territories.-

Patanjali Sastri, C. J. further observed in para, 7 at p. 213: 'Such limitation is indeed a logical consequence of the origin and development of the power to issue prerogative writs as a special remedy in England. Such power formed no part of the original or the appellate jurisdiction of the Court of King's Bench. As pointed out by Prof. Holdsworth (History of English Law. Vol. I, p. 212) these writs had their origin in the exercise of the King's prerogative power of superintendence over the due observance of the law by his officials and tribunals, and were issued by the Court of King's Bench-habeas corpus, that the King may know whether his subjects were lawfully imprisoned. or not; certiorari that he may know whether any proceedings commenced against them are conformable to the law, mandamus, to ensure that his officials did such acts as they were bound to do under the law, and prohibition, to oblige the inferior tribunals in his realm to function within the limits of their respective jurisdiction. See also the introductory remarks in the judgment in . These writs were thus specifically directed to the persons or authority against whom redress was sought and were made returnable in the Court issuing them and, in case of disobedience, were enforceable by attachment for contempt. These characteristics of the special form of remedy rendered it necessary for its effective use that the persons or authorities to whom the Court was asked to issue these writs should be within the limits of its territorial jurisdiction.'

11. In State of Uttar Pradesh v. Vijay Anand, : [1962]45ITR414(SC) , J. (as he then was) speaking for himself, Sinha, C. J. and N. Rajagopala Ayyangar and Venkatarama Aiyar, JJ. observed in Page 9 at p. 951 of the report:

'Article 226 confers a power on a High Court to issue the writs, orders, or directions mentioned therein for the enforcement of any of the rights conferred by Part III or for any other purpose. This is neither an appellate nor a revisional jurisdiction of the High Court. Though the power is not confined to the prerogative writs issued by the English Courts, it is modelled on the said writs mainly to enable the High Courts to keep the subordinate tribunals within bounds. Before the Constitution, the charatered High Courts, that is, the High Courts at Bombay, Calcutta and Madras, were issuing prerogative writs similar to, those issued by the King's Bench Division, subject to the same limitations imposed on the said writs. In Venkatarathnam . Secy. of State, ILR 53 Mad 979 : (AIR 1930 Mad 896), a Division Beach of the Madras High Court, consisting of Venkatasubba Rao and Madhavan Nair, JJ. held that the jurisdiction to issue a writ of certiorari was original jurisdiction,. Ryots of Garabandho v. Zamindar of Parlakimedi, AIR 1938 Mad 722, another Division Bench of the same High Court, consisting of Leach, C. J, and madhavan Nair, J. considered the question again incidentally and come to the same conclusion and held that a writ of certiorari is issued only in exercise of the original jurisdiction of the High Court. In Ramayya v. State of Madras. : AIR1952Mad300 , a Division Bench, consisting of Govinda menon and Ramaswami Gounder, JJ., considered the question whether the proceedings under Article 226 of the Constitution are in exercise of the original jurisdiction or revisional jurisdiction of the High Court; and the learned judges hold that the power to issue writs under Art. 226 of the Constitution is original and the jurisdiction exercised is original jurisdiction. In Hamid Hasan v. Banwarilal Roy (1947) 2 Mad LJ 32 at p. 35 : (AIR 1947 PC 90 at p. 93), the Privy Council was considering the question whether the original civil Jurisdiction which the Supreme Court of Calcutta possessed over certain classes of persons outside the territorial limits of that jurisdiction has been inherited by the High Court. In that context the judicial Committee observed:

,It cannot be disputed that the issue of such writs is a matter of original jurisdiction.' It is, therefore, clear from the nature of the power conferred under Art. 226 of the Constitution and the decisions an the subject that the High Court in exercise of its power under Art. 226 of the Constitution exercises original jurisdiction, though the said jurisdiction shall not be confused with the ordinary civil jurisdiction of the High Court. This jurisdiction, though original in character as contrasted with its appellate and revisional jurisdiction, is exercisable throughout the territories in relation to which it exercises jurisdiction and may, for convenience, be described as extraordinary original jurisdiction. if that be so, it cannot be contended that a petition under Art. 226 of the Constitution is a continuation of the proceedings under the Act.' -

12. In Tata Engineering and Locomotive Co. Ltd. v. Asst. Cornmr. of Commercial Taxes : [1967]2SCR751 , Hidayatullah, J. (as he then was) speaking for the Supreme Court observed in Para. 8 at p. 1403:

'The power and jurisdiction of the High Court under Art. 226 of the Constitution has been the subject of exposition from this Court. That it is extraordinary and to be used sparingly goes without saying. In spite of the very wide terms in which this jurisdiction is conferred, the High Courts have rightly recognised certain limitations on this power. The jurisdiction is not appellate and, it is obvious that it cannot be a substitute for the ordinary remedies at law. Nor is its exercise desirable if facts have to be found on evidence. The High Court, therefore, leaves the party aggrieved to take recourse to the remedies available under the ordinary law if they are equally efficacious and declines to assume jurisdiction to enable such remedies to be by-passed.'

13. In Shankar v. Krishnaji : [1970]1SCR322 , Grover, J. speaking for the Supreme Court observed at p. 4:

'Now when the aid of the High Court is invoked on the revisional side it is done because it is a superior Court and it can interfere for the purpose of rectifying the error of the Court below. Section 115 of the Civil P. C. circumstances the limits of that jurisdiction but the jurisdiction which is being exercised is a part of the general appellate jurisdiction of the High Court as a superior Court. It is only one of the modes of exercising power conferred by the Statute; basically and fundamentally it is appellate jurisdiction of the High Court which is being invoked and exercised in a wider and larger sense.'

14. These different decisions of the Supreme Court clearly bring out the following points:

(1) The revisional jurisdiction which the High Court exercises is a part of the general appellate jurisdiction of the High Court which it possesses over all Courts subordinate to it.

(2) The power of superintendence under Article 227 of the Constitution, prior to its amendment by 42nd Amendment Act of 1976 was a power of judicial superintendence akin to the power of revision being exercised under Section 115 of the Civil P. C. But, after the 42 Amendment Act, the power under Art. 227 of the Constitution can only be exercised in respect of orders or decisional of subordinate Courts.

(3) An order made by a single judge of the High Court in exercise of the powers under Art. 226 of the Constitution is neither in exercise of its appellate jurisdiction nor in the exercise of its revisional jurisdiction. It is in exercise of its extraordinary original jurisdiction.

15. It is clear from the lauguage,of Artcle 226 of the Constitution of India prior to its amendment and even after its amendment by 42nd Amendment Act of 1976, that when a High Court issues a writ, direction or order under Art. 226 of the Constitution, in respect of an order passed by any Tribunal functioning within the territories over which the High Court exercises jurisdiction, it does so, because the Tribunal is also an authority within the meaning of the provisions of Clause (1) of Art. 226 of the Constitution. Both, before and after the 42nd Amendment Act of 1976, Clause (1) of Art. 226 mentions only '.any authority'; and it is as an authority functioning within the territories over which the High Court exercises its jurisdiction thatTribunal orders are also subject to the jurisdiction of the High Court tinder Art. 226 There is no exercise of the power of superintendence which is contemplated by Article 227 of the Constitution. All that the High Court does in exercise of the jurisdiction under Art. 226 is to see to it, as pointed out by the Supreme Court in Election Commr. v Venkata Rao : [1953]4SCR1144 , that any proceedings commenced against the citizens of the country are conformable to the law if a writ of certiorari is to be issued, and if a writ of prohibition is to be issued , it is issued to the inferior tribunals in the States to function within the limits of their respective jurisdictions. It must be pointed out that the power is a power of judicial review in the context in which it has to see to it that the proceedings pending before the Tribunal as well as before any authority constituted under law are in conformity with law, and the proceedings are carried out in accordance with law. The power of superintendence is quite distinct from this power under Art. 226 of the Constitution. It is true, as pointed out by the Privy Council in Ryots of Garabandho v. Zamindar of Parlakimedi , that a writ of certiorari is an original writ which may issue out of a superior Court requiring that the record of the proceedings in some cause or matter pending before an inferior court should be , transmitted into the superior court to be then dealt with. The writ is sonamed , because, in its original Latin form it requried that the king should be certified of the proceedings to be investigated, and the object is to secure by the exercise of the authority of a superior Court, that the jurisdiction of the inferior tribunal should be properly exercised. This writ does not issue to correct purely executive acts, but on theother hand, its application is not narrowly limited to inferior 'Courts' in the strictest sense. Broadly speaking, it may be said at if the act done by the infeior body is a Judicial act, as distinguished from being a ministerial act, certiorari will lie. The remedy, in point of principle, is derived from the superintending authority which the Sovereign's Superior Courts, and in particular the Court of King's Bench possess and exercise over inferior jurisdictions. As pointed out by Subba Rao, J. (as he then was) in State of Uttar Pradesh v. Vijay Anand (AIR 1968 SC 946) (supra) when the framers of the Constitution enacted Art. 226 of the Constitution what'they did was to mould the remedies which the High Court would give under Art. 226 on the pattern of the writs issued by the King's Bench Division. But the words of Art. 226 make it clear that over and above those ancient writs, the High Court can issue directions or orders in the nature of writs to meet with the exigencies of a particular situation; and the High Courts are not confined to mere technicalities of the ancient writs.

16. Under these circumstances, it is obvious that a learned single judge of the High Court when he exercises powers under Article 226 of the Constitution, exercises extraordinary original jurisdiction (what may be called for convenience sake as constitutional jurisdiction) and this jurisdiction is distinct from revisional jurisdiction and appellate jurisdiction of the High Court. Under these circumstances, it is obvious that the view taken by the Division Bench consisting of S. H. Sheth and R.C. Mankad, JJ. in Letters Patent Appeal No. 303 of 1977 : (reported in : AIR1978Guj96 ), cannot be said to be correct since it is contrary to the view taken in several decisions of the Supreme Court referred to hereinabove. It may be pointed out that the other High Courts in the country have come to the same conclusion as we have done in this case (vide Ramayya v. State of Madras, : AIR1952Mad300 , Budge Budge Municipality v. Mongru Mia : AIR1953Cal433 , Aidal Singh v. Karan Singh : AIR1957All414 and Kamalnarain v. Dwarka Prasad : AIR1965MP15 .)

17. Before we conclude this judgment we may refer to one argument which Mr. H. M. Mehta, learned advocate appearing for an intervener urged before us. He contended that Clause 15 of the Letters Patent is only confined to classical civil cases and does not refer to constitutional jurisdiction of this High Court. He contended that constitutional jurisdiction is merely a revisional jurisdiction or in the alternative it is a jurisdiction akin to revisional jurisdiction. In this connection, he urged that according to the Corpus Juris Secundum, supervisory power is akin to the power of superintendence. He further contended that when Clause 15 of the Letters Patent was drafted and amended in 1919, the words 'revisional jurisdiction' used therein was confined to civil cases exclusively as distinguished from the cases arising under Art. 226 of the Constitution. He, therefore, contended that the words 'revisional jurisdiction' occurring in Clause 15 of the Letters Patent should be given a wider interpretation.

18. The argument of Mr. Mehta that the language of Clause 15 of the Letters Patent must be interpreted in the light of the condition which prevailed when the Letters Patent was originally brought on the Statute Book, cannot be accepted. In N. S. Thread Co. v. James Chadwick and Bros., AIR 1953 SC 857, a similar argument was sought to be advanced; and Mahajan, J. (as he then was) in Para. 7 at p. 359 observed:

'The Trade Marks Act does not provide or lay down any procedure for the future conduct or career of that appeal in the High Court, indeed Section 77 of the Act provides that the High Court can if it likes make rules in the matter. Obviously after the appeal had reached the High Court it has to be determined according to the rules of practice and procedure of that Court and in accordance with the provisions of the charter- under which that Court is constituted and which confers on it power in respect to the method and manner of exercising that jurisdiction. The rule is well settled that when a statute directs that an appeal shall he to a Court already established, then that appeal must be regulated by the practice and procedure of that Court. This rule was very succinctly stated by Viscount Haldane L. C. in National Telephone Co. v. Postmaster General (1913) AC 546 in these terms: 'When a question is stated to be referred to an established Court without more, it, in my opinion, imports that the ordinary incidents of the procedure of that Court are to attach, and also that any general right Of appeal from its decision likewise attaches.'

Since the order made in exercise of the power under Art. 226 of the Constitution is neither a revisional nor an appellate order but is an order made in exercise of the original jurisdiction, and since there is no other provision in the Constitution, the decision of the High Court is subject to the ordinary incidents of the procedure of the High Court viz., appealability under Clause 15 of the Letters Patent.

19. Under these circumstances, we answer the question referred to us as follows

'An appeal lies against a decision of a single judge of this High Court in the exercise of the Jurisdiction of the High Court under Art. 226 of the Constitution under C1. 15 of the Letters Patent; and it is not barred by the wordings of Clause 15 of the Letters Patent. The decision of the learned Single judge cannot be said to be given in the exercise of revisional jurisdiction of the High Court; and there is no other bar under Clause 15 of the Letters Patent.'

20. This Letters Patent Appeal will now be placed before the Division Bench for disposal in accordance with law.

21. Order accordingly.


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