Subscription   New User   Login      
Tax Management India .com
TMI - Tax Management India. Com
CGST - Acts + GST Rates GST Ntf. GST Forms GST - Manual GST - FAQ State GST Acts SGST Ntf. I. Tax Manual
Extracts
Home List
← Previous Next →

Sh Jogendrasinhji Vijaysinghji Versus State of Gujarat & Ors.

Scope of extraordinary writ jurisdiction of a High Court under Articles 226/227 of the Constitution of India. - Held that:- It is to be borne in mind how the jurisdiction under the letters patent appeal is to be exercised cannot exhaustively be stated. It will depend upon the Bench adjudicating the lis how it understands and appreciates the order passed by the learned Single Judge.

There cannot be a straight-jacket formula for the same. Needless to say, the High Court while exercising .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ticle 227 or both, would depend upon the rules framed by the High Court.

(B) The 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.

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

O. 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 2015 (@ SLP(C) NO.14264-14311/2014), C.A. NOS. 2378-2385 OF 2015 (@ SLP(C) NO.17496-17503/2014), C.A. NO. 2386 OF 2015 (@ SLP(C) NO. 18398/2014), C.A. NOS. 2387-2388 OF 2015 (@ SLP(C) NO. 19567-68/201 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

a Singh, Adv., Mr. Nachiketa Joshi,Adv., Mr. Sudhakar Joshi, Adv., Mr. Chaitanya Joshi, Adv., Mr. Bhushan M. Oza, Adv., Mr. O. P. Bhadani,Adv., Mr. Ashok Anand, Adv., Mr. Rakesh Kumar Singh,, Mr. Sanjay Kapur,Adv., Mr. D.G. Chauhan, Adv., Mr. Anmol Chandan, Adv., Ms. Priyanka Das, Adv., Ms. Daisy Hannah, Adv., Mr. Jatin Zaveri, Adv., Mr. Mohit D. Ram, Adv., Ms. Manisha T. Karia, Adv., Mr. Purvish Jitendra Malkan, Adv., Mr. Percy Kavina, Sr. Adv., Mr. Sunil Fernandes, Adv., Ms. Astha Sharma, Adv. .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

l substantiality of the judgment and order dated 26.12.2013 passed by the Special Bench of the High Court of Gujarat in a bunch of Letters Patent Appeals preferred under Clause 15 of the Letters Patent. 2. As the factual matrix would unveil, the Division Bench that referred the matter to a larger Bench, noticed conflict in Revaben Wd/o. Ambalal Motibhai and others v. Vinubhai Purshottambhai Patel and others 2013 (1) GLH 440 and Dilavarsinhsinh Khodubha Jadeja v. State of Gujarat and others 1995 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

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 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

one, when a petition assails an order of the tribunal, be it a tribunal of first instance or an appellate tribunal, should it be necessarily treated as a petition under Article 226 of the Constitution of India in every case or it would depend upon facts of each case, more particularly the grounds of challenge and the nature of order passed. (iii) Whether in a petition for issue of a writ of Certiorari under Article 227 of the Constitution of India, the tribunal/Court whose order is impugned in .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

rom the judgment impugned, has delved into the questions framed by it, if we permit ourselves to say so, at great length and recorded its conclusions in seriatum. It is necessary to reproduce the relevant conclusions, which are as follows:- (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 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

nal 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. xxx xxx xxx (ix) The term original jurisdiction as contained in Clause 15 of the Letters Patent should be understood in context with the .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

t 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 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

e 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 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

e 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 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

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 maintain .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ication 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. xxx xxx xxx (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 Indi .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ated to state that the conclusions have been recorded by the High Court to cover all kinds of possibilities, but we are of the considered opinion that it may not always be possible to do so and hence, advertence in detail to the said conclusions is neither necessitous nor warranted. 6. Having said that, presently we shall proceed to deal with the first question we have stated hereinbefore. In this regard, reference to the authority in T.C. Basappa v. T. Nagappa and Another AIR 1954 SC 440 would .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

strative bodies or other authorities or persons obliged to exercise such functions and is used in contrast with what are purely ministerial acts. Atkin, L.J. thus summed up the law on this point in Rex v. Electricity Commissioners 1924-1 KB 171 at p.205 (C): Whenever anybody or persons having legal authority to determine questions 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 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

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 b .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

e. 9. Certiorari may lie and is generally granted when a court has acted without or in excess of its jurisdiction. The want of jurisdiction may arise from the nature of the subject-matter of the proceeding or from the absence of some preliminary proceeding or the court itself may not be legally constituted or suffer from certain disability by reason of extraneous circumstances, vide Halsbury, 2nd edition, Vol. IX, page 880. When the jurisdiction of the court depends upon the existence of some co .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

) and said: Such writs as are referred to in Article 226 are obviously intended to enable the High Court to issue them in grave cases where the subordinate tribunals or bodies or officers act wholly without jurisdiction, or in excess of it, or in violation of the principles of natural justice, or refuse to exercise a jurisdiction vested in them, or there is an error apparent on the face of the record, and such act, omission, error or excess has resulted in manifest injustice. However extensive t .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

. 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 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

the position under Section 107 of the Government of India Act, 1915. It may also be noted that while in a certiorari under Article 226 the High Court can only annul the decision of the Tribunal, it can, under Article 227, do that, and also issue further directions in the matter. We must accordingly hold that the application of the appellant for a writ of certiorari and for other reliefs was maintainable under Articles 226 and 227 of the Constitution. In the said case, the court directed as follo .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

Waryam Singh (supra) and held that:- It is, thus, clear that the powers of judicial interference under Article 227 of the Constitution with orders of judicial or quasi-judicial nature, are not greater than the powers under Article 226 of the Constitution. Under Article 226, the power of interference may extend to quashing an impugned order on the ground of a mistake apparent on the face of the record. But under Article, 227 of the Constitution, the power of interference is limited to seeing that .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ent 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. 10. After so stating, the larger Bench referred to the decision in Hamid Hassan v. Banwarilal Roy AIR 1947 PC 90 wherein the Privy Council had obs .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

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 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

. It is singularly inappropriate to assume that a judicial decision pronounced by a Judge of competent jurisdiction in or in relation to a matter brought before him for adjudication can affect the fundamental rights of the citizens under Article 19(1). What the judicial decision purports to do is to decide the controversy between the parties brought before the court and nothing more. If this basic and essential aspect of the judicial process is borne in mind, it would be plain that the judicial .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

r Article 136 of the Constitution, but it cannot be said to affect the fundamental rights of the petitioners. The character of the judicial order remains the same whether it is passed in a matter directly in issue between the parties, or is passed incidentally to make the adjudication of the dispute between the parties fair and effective. On this view of the matter, it seems to us that the whole attack against the impugned order based on the assumption that it infringes the petitioners' fund .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

d by appeal or revision as may be permissible under the law; 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 observe .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

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 Court. But it will not be open to this Court in exercise of jurisdiction under Article 32 to go behind or to examine the final verdict reached by a competent court convicting and sentencing the condemned prisoner and even while considering the ci .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

he ratio laid down in Surya Dev Rai v. Ram Chander Rai and others (2003) 6 SCC 675 that judicial orders passed by the Civil Court can be examined and then corrected/reversed by the writ court under Article 226 in exercise of its power under writ of certiorari, speaking through one of us (Adarsh Kumar Goel, J.), referred to number of judgments including some of the decisions we have cited hereinabove and reproduced the opinion expressed in Sadhana Lodh v. National Insurance Co. Ltd. (2003) 3 SCC .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

duct of the statute it is not open to an insurer to take any plea other than those provided under Section 149(2) of the Act (see National Insurance Co. Ltd. v. Nicolletta Rohtagi (2002) 7 SCC 456). This being the legal position, the petition filed under Article 227 of the Constitution by the insurer was wholly misconceived. Where a statutory right to file an appeal has been provided for, it is not open to the High Court to entertain a petition under Article 227 of the Constitution. Even if where .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

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 p .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

e courts in dealing with their judicial orders is exercised by way of appellate or revisional powers or power of superintendence under Article 227. Orders of civil court stand on different footing from the orders of authorities or Tribunals or courts other than judicial/civil courts. While appellate or revisional jurisdiction is regulated by statutes, power of superintendence under Article 227 is constitutional. The expression "inferior court" is not referable to judicial courts, as ri .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

uoted above. We make it clear that though despite the curtailment of revisional jurisdiction under Section 115 CPC by Act 46 of 1999, jurisdiction of the High Court under Article 227 remains unaffected, it has been wrongly assumed in certain quarters that the said jurisdiction has been expanded. Scope of Article 227 has been explained in several decisions including Waryam Singh and another vs. Amarnath and another (supra), Ouseph Mathai vs. M. Abdul Khadir (2002) 1 SCC 319, Shalini Shyam Shetty .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

lso deal with the submission made on behalf of the respondent that the view in Surya Dev Rai stands approved by larger Benches in Shail, Mahendra Saree Emporium and Salem Advocate Bar Assn and on that ground correctness of the said view cannot be gone 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 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ial 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 parameters of challenge have been clearly laid down by this C .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

his Court which have drawn the distinction between Article 226 and 227 of the Constitution of India and the three-Judge Bench in Radhey Shyam (supra) has clearly stated that jurisdiction under Article 227 is distinct from jurisdiction under Article 226 of the Constitution and, therefore, a letters patent appeal or an intra-court appeal in respect of an order passed by the learned Single Judge dealing with an order arising out of a proceeding from a Civil Court would not lie before the Division B .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

1 and 17, applications under Articles 226 and 227 are required to be heard and disposed of by a Division Bench. Rule 4, however, gives power to a Single Judge to issue rule nisi on an application under Article 226 but precludes him from passing any final order on such application. It is because a Single Judge has no power under Rules 1, 4 and 17 to hear and dispose of a petition under Article 226 or 227 that the non obstante clause has been introduced in Rule 18. The use of the words be heard an .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

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 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

107. Petitions are at times filed both under Articles 226 and 227 of the Constitution. The case of Hari Vishnu Kamath v. Syed Ahmad Ishaque (1955) 1 SCR 1104 : AIR 1955 SC 233 before this Court was of such a type. Rule 18 provides that where such petitions are filed against orders of the Tribunals or authorities specified in Rule 18 of Chapter XVII of the Appellate Side Rules or against decrees or orders of courts specified in that rule, they shall be heard and finally disposed of by a Single Ju .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

matter, in the final order the court gives ancillary directions which may pertain to Article 227, this ought not to be held to deprive a party of the right of appeal under clause 15 of the Letters Patent where the substantial part of the order sought to be appealed against is under Article 226. Such was the view taken by the Allahabad High Court in Aidal Singh v. Karan Singh AIR 1957 All 414 : 1957 All LJ 388 (FB) and by the Punjab High Court in Raj Kishan Jain v. Tulsi Dass AIR 1959 Punj 291 a .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

appeal not resulting in success, compelled the landlord to file a writ petition under Articles 226 and 227 of the Constitution of India before the Bombay High Court. Before this Court, an objection was raised with regard to the maintainability of the letters patent appeal. This Court referred to the decision in Umaji Keshao Meshram case (supra) and opined as follows:- 6. Applying the correct ratio laid down in Umaji Keshao Meshram case (supra) and perusing the writ petition filed in the present .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

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 Re .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

mat Newspapers Pvt. Ltd. v. Shankarprasad (1999) 6 SCC 275, the controversy arose from the order passed by the Labour Court which had secured affirmation from the Industrial Tribunal. The said orders were challenged by the respondent therein by filing a writ petition under Articles 226 and 227 of the Constitution of India before the High Court. The Court adverted to the facts and also the order passed by the learned Single Judge and in that context ruled:- As seen earlier, he was considering the .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

squarely gets attracted on the facts of the present case. It was open to the respondent to invoke the jurisdiction of the High Court both under Articles 226 and 227 of the Constitution of India. Once such a jurisdiction was invoked and when his writ petition was dismissed on merits, it cannot be said that the learned Single Judge had exercised his jurisdiction only under Article 226 (sic 227) of the Constitution of India. This conclusion directly flows from the relevant averments made in the wri .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ere 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 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ition 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 Supp (1) SCC 11. 23. In Ashok K. Jha and others v. Garden Silk Mills Ltd. and Another (2009) 10 SCC 584, as the factual matrix would reveal, the employees had approached the Labour Court for certain reliefs. The Labour Court on consideration of the facts and law, declined to grant the relief. Being dissatisfied, the employees a .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

preferred under clause 15 of the Letters Patent. The Division Bench allowed the appeal and set aside the judgment and order passed by the learned Single Judge. A contention was raised before this Court pertaining to maintainability of letters patent appeal under clause 15 of the Letters Patent. R.M. Lodha, J. (as His Lordship then was) speaking for the Court, referred to the authorities in Umaji Keshao Meshram (supra), Ratnagiri Dist. Central Coop. Bank Ltd. v. Dinkar Kashinath Watve (1993) Supp .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

226, the appeal would be maintainable. What is important to be ascertained is the true nature of order passed by the Single Judge and not what provision he mentions while exercising such powers. 37. We agree with the view of this Court in Ramesh Chandra Sankla (supra) that a statement by a learned Single Judge that he has exercised power under Article 227, cannot take away right of appeal against such judgment if power is otherwise found to have been exercised under Article 226. The vital facto .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

udgment, 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 Articl .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

of the order passed by the learned Single Judge, the type of directions issued regard being had to the jurisdictional perspectives in the constitutional context. Barring the civil court, from which order as held by the three-Judge Bench in Radhey Shyam (supra) that a writ petition can lie only under Article 227 of the Constitution, orders from tribunals cannot always be regarded for all purposes to be under Article 227 of the Constitution. Whether the learned Single Judge has exercised the juri .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ch hearing the letters patent appeal to discern and decide whether the order has been passed by the learned Single Judge in exercise of jurisdiction under Article 226 or 227 of the Constitution or both. The Division Bench would also be required to scrutinize whether the facts of the case justify the assertions made in the petition to invoke the jurisdiction under both the articles and the relief prayed on that foundation. Be it stated, one of the conclusions recorded by the High Court in the imp .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ld not be maintainable as one of the relief of certiorari, in the absence of the concerned tribunal or Court as a party, cannot be granted. It has also 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 maint .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

tiorari, 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 functus officio subsequent to the decision could have no effect on the jurisdiction of the court to remove the record. If it is a question of issuing dir .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ender its determination effective. 12. Learned counsel for the first respondent invites our attention to the form of the order nisi in a writ of certiorari , and contends that as it requires the court or tribunal whose proceedings are to be reviewed, to transmit the records to the superior court, there is, if the tribunal has ceased to exist, none to whom the writ could be issued and none who could be compelled to produce the record. But then, if the writ is in reality directed against the recor .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

olly unconvincing. In that context, the Constitution Bench, speaking through S.R. Das, C.J. observed:- ... It is needless to say that the adoption of such dubious devices is not calculated to produce a favourable impression on the mind of the court as to the good faith of the authorities concerned in the matter. We must also point out that when a superior court issues a rule on an application for certiorari it is incumbent on the inferior court or the quasi-judicial body, to whom the rule is add .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

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 f .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

license and to consider his claim on certain parameters. One Bhagwan Rajak, who was not an applicant before the Deputy Commissioner, filed an application before the Commissioner alleging that there should have been fresh advertisement for the settlement of the shop. The Commissioner allowed his application and directed the Deputy Commissioner to take steps for fresh settlement of the shop in accordance with the rules. The said order was assailed before the Board of Revenue which dismissed the p .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

orders and before the writ court neither Phudan Manjhi nor Bhagwan Rajak in whose favour the Board of Revenue had decided was made a party. During the pendency of an appeal before this Court, the Deputy Commissioner had conducted an enquiry and come to the conclusion that Phudan Manjhi was not fit to be selected for grant of licence and he was waiting for making a fresh settlement. In course of hearing of the appeal, a preliminary objection was raised by the learned counsel for the respondent th .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

cision on the question involved in the proceeding. After so stating, the four- Judge Bench proceeded to deal with the nature of writ of certiorari and reproduced a passage from King v. Electricity Commissioners 1924 1 KB , which is as follows:- 8. ....Wherever any body of persons having legal authority to determine questions 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& .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

re 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 th .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

said that in an appeal against the decree of a subordinate court, the court that passed the decree need not be made a party and on the same parity of reasoning it is contended that a tribunal need not also be made a party in a writ proceeding. But there is an essential distinction between an appeal against a decree of a subordinate court and a writ of certiorari to quash the order of a tribunal or authority: in the former, the proceedings are regulated by the Code of Civil Procedure and the cou .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

writ, it can easily ignore the order of the High Court quashing its order, for, not being a party, it will not be liable to contempt. In these circumstances whoever else is a necessary party or not the authority or tribunal is certainly a necessary party to such a proceeding. In this case, the Board of Revenue and the Commissioner of Excise were rightly made parties in the writ petition. Thereafter, the Court proceeded to lay down thus:- 9. The next question is whether the parties whose rights a .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

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 wit .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

son as a party to a writ proceeding depends upon the judicial discretion of the High Court in the circumstances of each case. Either one of the parties to the proceeding may apply for the impleading of such a parry or such a party may suo motu approach the court for being impleaded therein. After so stating, the four-Judge Bench referred to English practice as recorded in Halsbury s Laws of England, Vol. 11, 3rd Edn. (Lord Simonds ) and a Division Bench judgment of the Bombay High Court in Ahmed .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

he controversy either suo motu or on the application of a party to the writ or an application filed at the instance of such proper party. 30. The High Court, as we find, relied on the aforesaid decision to form the foundation that unless a Court or a tribunal is made a party, the proceeding is not maintainable. What has been stated in Hari Vishnu Kamath (supra), which we have reproduced hereinbefore is that where plain question on issuing directions arises, it is conceivable that there should be .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

y was non-impleadment of the persons in whose favour the Board of Revenue had passed a favourable order. There was violation of fundamental principles of natural justice. A party cannot be visited with any kind of adverse order in a proceeding without he being arrayed as a party. As we understand in Hari Vishnu Kamath (supra), the seven-Judge Bench opined that for issuance of writ of certiorari, a tribunal, for issue of purpose of calling of record, is a proper party, and even if the tribunal ha .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

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 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ot be in any way equated to the officials of the Government. It is high time that the practice of impleading judicial officers disposing of civil proceedings as parties to writ petitions under Article 226 of the Constitution of India or special leave petitions under Article 136 of the Constitution of India was stopped. We are strongly deprecating such a practice. 33. The High Court after referring to the controversy involved in Savitri Devi (supra) has opined thus:- In our opinion, the observati .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

preme Court may have observed that the presence of the Tribunal would be proper yet may not be necessary for the exercise of the jurisdiction or to render its determination effective, but the said principle has been more elaborately explained and made clear by the Supreme Court in Udit Narain (supra) laying down as an absolute proposition of law that no writ could be issued under Article 226 of the Constitution without the Tribunal, whose order is sought to be impugned, is made a party responden .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

and in that context observed that tribunal is a necessary 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 i .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

, 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 the authorities. An Income Tax Commissioner, whatever rank he may be holding, when he adjudicates, he has to be made a party, for he can defend his order. He is entitled to contest. There are many authorities under many a statute. Therefo .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

To give another example:- in certain enactments, the District Judges function as Election Tribunals from whose orders a revision or a writ may lie depending upon the provisions in the Act. In such a situation, the superior court, that is the High Court, even if required to call for the records, the District Judge need not be a party. Thus, in essence, when a tribunal or authority is required to defend its own order, it is to be made a party failing which the proceeding before the High Court wou .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

 

 

 

 

 



|| Home || Acts and Rules || Notifications || Circulars || Schedules || Tariff || Forms || Case Laws || Manuals ||

|| About us || Contact us || Disclaimer || Terms of Use || Privacy Policy || TMI Database || Members || Site Map ||

© Taxmanagementindia.com [A unit of MS Knowledge Processing Pvt. Ltd.] All rights reserved.

Go to Mobile Version