TMI Blog2015 (9) TMI 1338X X X X Extracts X X X X X X X X Extracts X X X X ..... e order passed by the civil court is only amenable to be scrutinized by the High Court in exercise of jurisdiction under Article 227 of the Constitution of India which is different from Article 226 of the Constitution and as per the pronouncement in Radhey Shyam (supra), no writ can be issued against the order passed by the civil court and, therefore, no letters patent appeal would be maintainable. C) The writ petition can be held to be not maintainable if a tribunal or authority that is required to defend the impugned order has not been arrayed as a party, as it is a necessary party. (D) Tribunal being or not being party in a writ petition is not determinative of the maintainability of a letters patent appeal. - CIVIL APPEAL NO. 2374 OF 2015 [Arising out of SLP(C) No. 10203 of 2014] WITH C.A. NOS. 2375-76 OF 2015 (@ SLP(C) NO.11756-57/2014), C.A. NO. 2717 OF 2015 (@ SLP(C) NO. 12027/2014), C.A. NOS. 2669-2716 OF 2015 (@ SLP(C) NO.14264-14311/2014) - - - Dated:- 6-7-2015 - CIVIL APPEAL NO. 2374 OF 2015 [Arising out of SLP(C) No. 10203 of 2014] WITH C.A. NOS. 2375-76 OF 2015 (@ SLP(C) NO.11756-57/2014), C.A. NO. 2717 OF 2015 (@ SLP(C) NO. 12027/2014), C.A. NOS. 2669-2716 OF ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nary objections of the learned counsel for the State as regards the maintainability of the Letters Patent Appeal on many a score and thereafter thought it appropriate to frame the questions afresh and accordingly it formulated questions. 3. At the outset, we may state that though eight questions have been drawn up by the special Bench yet we are disposed to think that they can really be put into three basic compartments, namely: (i) In what context the phrase original jurisdiction appearing in Clause 15 of the Letters Patens should be construed, that is, by taking into consideration the plain meaning of the same as the Court s power to hear and decide the matter before any other court and review the same; or should it be construed in the context with the power of the Court to issue a writ under Article 226 of the Constitution of India, which is always original. (ii) Assuming the words to issue to any person or authority as contained in Article 226 of the Constitution are interpreted so as to include the tribunal or the Court, then in such circumstances, would it be the correct proposition of law to say that appellate tribunal is not amenable to a writ of certiorari an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld 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. xxx xxx xxx (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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd having the duty to act judicially act in excess of their legal authority, they are subject to the controlling jurisdiction of the King's Bench Division exercised in these writs. The second essential feature of a writ of certiorari is that the control which is exercised through it over judicial or quasi-judicial tribunals or bodies is not in an appellate but supervisory capacity. In granting a writ of certiorari the superior court does not exercise the powers of an appellate tribunal. It does not review or reweigh the evidence upon which the determination of the inferior tribunal purports to be based. It demolishes the order which it considers to be without jurisdiction or palpably erroneous but does not substitute its own views for those of the inferior tribunal. The offending order or proceeding so to say is put out of the way as one which should not be used to the detriment of any person, vide per Lord Cairns in Walsall s Overseers v. L. N. W.Rly. Co 1879) 4 AC 30 at p. 39 (D) . 8. The supervision of the superior court exercised through writs of certiorari goes on two points, as has been expressed by Lord Sumner in King v. Nat Bell Liquors Limited (1922) 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i under Article 226 of the Constitution. 7. In Hari Vishnu Kamath v. Ahmad Ishaque and Ors. AIR 1955 SC 233, a seven- Judge Bench, while dealing with the scope of proceeding under Article 226 of the Constitution, observed that there can be no dispute that the orders of the Election Tribunals are subject to the supervisory jurisdiction of the High Courts under Article 226 and a writ of certiorari under that Article will be competent against decisions of the Election Tribunals also. The Court referred to the decision in T.C. Basappa (supra) and other authorities and ruled thus:- We are also of opinion that the Election Tribunals are subject to the superintendence of the High Courts under Article 227 of the Constitution, and that superintendence is both judicial and administrative. That was held by this Court in Waryam Singh v. Amarnath AIR 1954 SC 215 , where it was observed that in this respect Article 227 went further than Section 224 of the Government of India Act, 1935, under which the superintendence was purely administrative, and that it restored the position under Section 107 of the Government of India Act, 1915. It may also be noted that while in a certiorari under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... il had observed that the original civil jurisdiction which the Supreme Court of Calcutta had possessed over certain classes of persons outside the territorial limits of that jurisdiction was a matter of original jurisdiction. Thereafter, the Court referred to certain High Court decisions and opined:- .... It is, therefore, clear from the nature of the power conferred under Article 226 of the Constitution and the decisions on the subject that the High Court in exercise of its power under Article 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 jurisdictions, 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 Article 226 of the Constitution is a continuation of the proceedings under the Act. 11. In this context, reference to the nine-Judge Bench decision in Naresh Shridhar Mirajkar v. State of M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but until the adjudication by a superior court on such a point is set aside by adopting the appropriate course, it would not be open to be corrected by the exercise of the writ jurisdiction of this Court. 13. In the first decade of this century in Rupa Ashok Hurra v. Ashok Hurra and Another (2002) 4 SCC 388, the Constitution Bench referred to the Triveniben v. State of Gujarat (1989) 1 SCC 678, reiterated the same principle and observed:- It is well settled now that a judgment of court can never be challenged under Articles 14 or 21 and therefore the judgment of the court awarding the sentence of death is not open to challenge as violating Article 14 or Article 21 as has been laid down by this Court in Naresh Shridhar Mirajkar v. State of Maharashtra (supra) and also in A.R. Antulay v. R.S. Nayak (1988) 2 SCC 602 , the only jurisdiction which could be sought to be exercised by a prisoner for infringement of his rights can be to challenge the subsequent events after the final judicial verdict is pronounced and it is because of this that on the ground of long or inordinate delay a condemned prisoner could approach this Court and that is what has consistently been held by this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... file a revision before the High Court under Section 115 of the Code of Civil Procedure. Where remedy for filing a revision before the High Court under Section 115 CPC has been expressly barred by a State enactment, only in such case a petition under Article 227 of the Constitution would lie and not under Article 226 of the Constitution. As a matter of illustration, where a trial court in a civil suit refused to grant temporary injunction and an appeal against refusal to grant injunction has been rejected, and a State enactment has barred the remedy of filing revision under Section 115 CPC, in such a situation a writ petition under Article 227 would lie and not under Article 226 of the Constitution. Thus, where the State Legislature has barred a remedy of filing a revision petition before the High Court under Section 115 CPC, no petition under Article 226 of the Constitution would lie for the reason that a mere wrong decision without anything more is not enough to attract jurisdiction of the High Court under Article 226 of the Constitution. 15. After so stating, the three-Judge Bench referred to Surya Dev Rai (supra), the analysis made by the two-Judge Bench and ultimately came ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... into by this Bench. In Shail, though reference has been made to Surya Dev Rai, the same is only for the purpose of scope of power under Article 227 as is clear from para 3 of the said judgment. There is no discussion on the issue of maintainability of a petition under Article 226. In Mahendra Saree Emporium, reference to Surya Dev Rai is made in para 9 of the judgment only for the proposition that no subordinate legislation can whittle down the jurisdiction conferred by the Constitution. Similarly, in Salem Bar Assn. in para 40, reference to Surya Dev Rai is for the same purpose. We are, thus, unable to accept the submission of learned counsel for the respondent. 25. Accordingly, we answer the question referred as follows: (i) Judicial orders of civil court are not amenable to writ jurisdiction under Article 226 of the Constitution; (ii) Jurisdiction under Article 227 is distinct from jurisdiction from jurisdiction under Article 226. Contrary view in Surya Dev Rai is overruled. 16. The aforesaid authoritative pronouncement makes it clear as day that an order passed by a civil court can only be assailed under Article 227 of the Constitution of India and the para ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt is concerned is illogical because Rules 1, 4 and 7 use the words be heard and disposed of by a Divisional Bench and were the reasoning of the Full Bench correct, it would mean that so far as the High Court is concerned, when a Single Judge hears a matter and disposes it of, it is finally disposed of and when a Division Bench disposes it of, it is not finally disposed of. The right of appeal against the judgment of a Single Judge is given by the Letters Patent which have been continued in force by Article 225 of the Constitution. If under the Rules of the High Court, a matter is heard and disposed of by a Single Judge, an appeal lies against his judgment unless it is barred either under the Letters Patent or some other enactment. The word finally used in Rule 18 of Chapter XVII of the Appellate Side Rules does not and cannot possibly have the effect of barring a right of appeal conferred by the Letters Patent. As we have seen above, an intra-court appeal against the judgment of a Single Judge in a petition under Article 226 is not barred while clause 15 itself bars an intra-court appeal against the judgment of a Single Judge in a petition under Article 227. 107. Petitions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laid down in Umaji Keshao Meshram case (supra) and perusing the writ petition filed in the present case as well as the order passed by the learned Single Judge we are clearly of the view that the present case clearly falls within the ambit of Article 226 of the Constitution. In Umaji Keshao Meshram case (supra) it was clearly held that: Where the facts justify a party in filing an application either under Article 226 or 227 of the Constitution, and the party chooses to file his application under both these Articles, in fairness and justice to such party and in order not to deprive him of the valuable right of appeal the court ought to treat the application as being made under Article 226 . 7. The learned Single Judge in his impugned judgment dated December 11, 1987 nowhere mentioned that he was exercising the powers under Article 227 of the Constitution. The learned Single Judge examined the matter on merit and set aside the orders of the Rent Controller as well as the Resident Deputy Collector on the ground that the aforesaid judgments were perverse. The findings of the Rent Controller and Resident Deputy Collector were set aside on the question of habitual defaulter as w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gaged to the Bank were sold. An appeal preferred before the Joint Registrar, Cooperative Societies was dismissed and a further appeal was preferred before the Board of Revenue which interfered with the order passed by the Joint Registrar. The order passed by the Board of Revenue was called in question by the District Land Development Bank, which was allowed by the learned Single Judge. A letters patent appeal was preferred challenging the order of the learned Single Judge which opined that the order passed by the learned Single Judge was not maintainable as he had exercised the jurisdiction under Article 227 of the Constitution of India. Dealing with the maintainability of the appeal, the two-Judge Bench held that:- The learned Single Judge of the High Court, in our opinion, committed an error in interfering with the findings of fact arrived at by the Board of Revenue. The Division Bench of the High Court also wrongly dismissed the LPA without noticing that an appeal would be maintainable if the writ petition was filed under Articles 226 and 227 of the Constitution of India as was held by this Court in Sushilabai Laxminarayan Mudliyar v. Nihalchand Waghajibhai Shaha 1993 Sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peal is the nature of jurisdiction invoked by the party and the true nature of principal order passed by the Single Judge. 24. At this juncture, we think it appropriate to reproduce a passage from Ramesh Chandra Sankla (supra) which has been quoted in Ashok Jha (supra). In the said case, the two-Judge Bench while dealing with the maintainability of letters patent appeal under clause 15 of the Letters Patent has ruled that:- 47. In our judgment, the learned counsel for the appellant is right in submitting that nomenclature of the proceeding or reference to a particular article of the Constitution is not final or conclusive. He is also right in submitting that an observation by a Single Judge as to how he had dealt with the matter is also not decisive. If it were so, a petition strictly falling under Article 226 simpliciter can be disposed of by a Single Judge observing that he is exercising power of superintendence under Article 227 of the Constitution. Can such statement by a Single Judge take away from the party aggrieved a right of appeal against the judgment if otherwise the petition is under Article 226 of the Constitution and subject to an intra-court/letters patent ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been held that if the Court or tribunal has not been impleaded as party-respondent in the main writ petition, then by merely impleading such Court or tribunal for the first time in letters patent appeal would not change the nature and character of the proceeding before the learned Single Judge and, therefore, intra-court appeal would not be maintainable. To arrive at the said conclusion, the High Court has referred to Messrs. Ghaio Mal Sons v. State of Delhi and others AIR 1959 SC 65, Hari Vishnu Kamath (supra) and relied upon a four-Judge Bench judgment in Udit Narain Singh Malpaharia v. Addl. Member, Board of Revenue AIR 1963 SC 786. 27. In Hari Vishnu Kamath (supra), after referring to the decision in T.C. Basappa (supra) and quoting a passage from Corpus Juris Secundum, Volume 14 at page 123, which deals with the nature of certiorari, it has been laid down:- 11. The writ for quashing is thus directed against a record, and as a record can be brought up only through human agency, it is issued to the person or authority whose decision is to be reviewed. If it is the record of the decision that has to be removed by certiorari , then the fact that the tribunal has become ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Court so that the latter may be satisfied that the inferior court or the quasi-judicial body has not gone beyond its jurisdiction and has exercised its jurisdiction within the limits fixed by the law. Non-production of the records completely defeats the purpose for which such writs are issued, as it did in the present case before the High Court. We strongly deprecate this attempt on the part of the official respondents to bypass the court. 29. In Udit Narain Singh Malpaharia (supra), as the facts would demonstrate the counsel for the respondent therein raised a preliminary objection that the persons in whose favour the Board decided the petition had not been made parties before the High Court. Be it noted, in the said case a country liquor shop was settled in favour of the appellant therein. After expiry of the said licence, it was renewed in his favour in 1962 which was called in question by one Phudan Manjhi before the Deputy Commissioner for substituting his name in place of his father on the basis of the lot drawn in favour of his father. The Deputy Commissioner rejected the same which was assailed by Phudan Manjhi before the Commissioner of Excise who remanded the case t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uestions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority they are subject to the controlling jurisdiction of the King's Bench Division exercised in these writs. Lord Justice Slesser in King v. London County Council45 dissected the concept of judicial act laid down by Atkin, L.J., into the following heads in his judgment: Wherever anybody of persons (1) having legal authority (2) to determine questions affecting rights of subjects and (3) having the duty to act judicially (4) act in excess of their legal authority - a writ of certiorari may issue. It will be seen from the ingredients of judicial act that there must be a duty to act judicially. A tribunal, therefore, exercising a judicial or quasi-judicial act cannot decide against the rights of a party without giving him a hearing or an opportunity to represent his case in the manner known to law. If the provisions of a particular statute or rules made thereunder do not provide for it, principles of natural justice demand it. Any such order made without hearing the affected parties would be void. As a writ of certiorari will be granted to remove the record of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the successful party. How can the High Court vacate the said order without the successful party being before it? Without the presence of the successful party the High Court cannot issue a substantial order affecting his right. Any order that may be issued behind the back of such a party can be ignored by the said party, with the result that the tribunal's order would be quashed but the right vested in that party by the wrong order of the tribunal would continue to be effective. Such a party, therefore, is a necessary party and a petition filed for the issue of a writ of certiorari without making him a party or without impleading him subsequently, if allowed by the court, would certainly be incompetent. A party whose interests are directly affected is, therefore, a necessary party. 10. In addition, there may be parties who may be described as proper parties, that is parties whose presence is not necessary for making an effective order, but whose presence may facilitate the settling of all the questions that may be involved in the controversy. The question of making such a person as a party to a writ proceeding depends upon the judicial discretion of the High Court in the cir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he tribunal has ceased to exist, there would be some one incharge of the tribunal from whom the records can be requisitioned and who is bound in law to send the records. The larger Bench has clearly stated that while issuing a writ of certiorari, the Court merely demolishes the defending order, the presence of the offender before the Court though proper but is not necessary for exercise of jurisdiction. The said finding was recorded in the context of a tribunal. 32. In this context, we may profitably refer to the decision in Savitri Devi (supra) wherein a three-Judge Bench, though in a different context, had observed thus:- Before parting with this case, it is necessary for us to point out one aspect of the matter which is rather disturbing. In the writ petition filed in the High Court as well as the special leave petition filed in this Court, the District Judge, Gorakhpur and the 4th Additional Civil Judge (Junior Division), Gorakhpur are shown as respondents and in the special leave petition, they are shown as contesting respondents. There was no necessity for impleading the judicial officers who disposed of the matter in a civil proceeding when the writ petition was filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... party. In Savitri Devi (supra), the Court took exception to courts and tribunals being made parties. It is apposite to note here that propositions laid down in each case has to be understood in proper perspective. Civil courts, which decide matters, are courts in the strictest sense of the term. Neither the court nor the Presiding Officer defends the order before the superior court it does not contest. If the High Court, in exercise of its writ jurisdiction or revisional jurisdiction, as the case may be, calls for the records, the same can always be called for by the High court without the Court or the Presiding Officer being impleaded as a party. Similarly, with the passage of time there have been many a tribunal which only adjudicate and they have nothing to do with the lis. We may cite few examples; the tribunals constituted under the Administrative Tribunals Act, 1985, the Custom, Excise Service Tax Appellate Tribunal, the Income Tax Appellate Tribunals, the Sales Tax Tribunal and such others. Every adjudicating authority may be nomenclatured as a tribunal but the said authority(ies) are different that pure and simple adjudicating authorities and that is why they are called t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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