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2015 (9) TMI 1338 - SUPREME COURT

2015 (9) TMI 1338 - SUPREME COURT - TMI - 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. Needle .....

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n a petition to make it under Article 226 or Article 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 letter .....

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756-57/2014), 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 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. NO .....

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Singh, Adv., Mr. Gautam Narayan, AOR, Ms. Asmita 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 .....

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leave, the appellants call in question the legal 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 Khodu .....

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ons 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 .....

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Article 227 of the Constitution and, ancillary 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, .....

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diction. 4. The special bench as is evincible from 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 .....

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urt concerned. Thus, if an appellate or revisional order of the Court or Tribunal, subordinate to a High Court, suffers from a patent error of law or jurisdiction, the same could be challenged before the High Court with the aid of Article 226 of the Constitution and it could not be said that such an appellate or revisional order of the Court or Tribunal could be challenged with the aid of Article 227 alone. xxx xxx xxx (ix) The term original jurisdiction as contained in Clause 15 of the Letters .....

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e 227 of the Constitution of India and the Court or the Tribunal whose order is sought to be quashed, is not made a party, the application is not maintainable as one for the relief of certiorari in the absence of the concerned Tribunal or Court as party, but the same may be treated as one under Article 227 of the Constitution of India. If the Court or Tribunal is not impleaded as a party respondent in the main petition, then by merely impleading such court or tribunal for the first time in the L .....

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order of Tribunal or Court below and at the same time, the essential conditions for issue of writ of certiorari are absent, no appeal will be maintainable against such order in view of the specific bar created under Clause 15 of the Letters Patent itself and such an order can be challenged only by way of a Special Leave Petition before the Supreme Court. To put it very explicitly, take a case where a petition is only under Article 227 of the Constitution of India, invoking superintending powers .....

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taining such a petition under Article 227 of the Constitution of India, if the court allows a petition by setting aside the order impugned, then against such an order no LPA would lie. xii) If a learned Single Judge, in exercise of a purported power under Article 227 of the Constitution modifies the order of Tribunal/Authority or Court below and thereby partly allows a petition to a certain extent, then in such circumstances, it could not be said that the Court exercised its certiorari jurisdict .....

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ervisory 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 .....

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y the balance amount of court fees and the application should be treated accordingly. It is, however, for the Court to decide whether the facts of the case justify invocation of original jurisdiction or it is a fit case for exercising supervisory jurisdiction. 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 petitio .....

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proceedings. 5. At this juncture, we are obligated 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 .....

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exercise of quasi-judicial functions by administrative 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 .....

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ibunal 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 certior .....

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the principles to the facts of a particular case. 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 .....

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nd Raman Ltd. AIR 1952 SC 192 at pp. 195-196 (I) 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 resu .....

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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 .....

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as 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 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 .....

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onstitution Bench referred to the authority in 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 .....

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r 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. 10. After so stating, the larger Bench referred to the decision in Hamid Hassan v. Banwarilal Roy A .....

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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 ca .....

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he order of the High Court expressed:- 38. ..... 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 born .....

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the impugned order be challenged in appeal under 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 assumpt .....

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on is erroneous, it can, of course, be corrected 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 .....

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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 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 conde .....

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y a Division Bench expressing its doubt about the 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 Lo .....

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e enumerated grounds and the appeal being a product 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 .....

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d 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 be .....

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dinate courts. Control of working of subordinate 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&q .....

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ly observed by the referring Bench in Para 32 quoted 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 .....

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227 is different from Article 226. 24. We may also 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 i .....

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e 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 parameters of .....

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n, we have referred to series of judgments of this 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 .....

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nally disposed of . As seen above, under Rules 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 introduc .....

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soning 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 .....

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Single Judge in a petition under Article 227. 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 .....

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made under Article 226, and if in deciding the 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 Ra .....

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Collector and Rent Controller and its assail in 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 .....

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ch 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 .....

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maintainable before the High Court. 21. In Lokmat 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 .....

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ram (supra) and ruled:- The aforesaid decision 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 fl .....

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nk therein and the land mortgaged 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 J .....

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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 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 .....

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e aforesaid order, a letters patent appeal was 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. .....

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e judgment appealed against falls under Article 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 be .....

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he 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 e .....

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in the writ petition, the nature and character 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 .....

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d it will be the obligation of the Division Bench 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 co .....

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if not arrayed as a party, the application would 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, t .....

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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 functus officio subsequent to the decision could have no effect on the jurisdiction of the court to remove .....

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ry for the exercise of the jurisdiction or to render 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 th .....

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rd and evasive replies were filed which were wholly 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 t .....

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ecords 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 s .....

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onsider the fitness of Phudan Manjhi to get the 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 be .....

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efore the High Court for quashment of the said 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 rais .....

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presence is necessary for complete and final decision 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 subje .....

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n 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 .....

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ings cannot be brought to the High Court. It is 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 regul .....

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tribunal or authority is not made party to the 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 .....

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ate 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 .....

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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 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 B .....

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ing all the questions that may be involved in the 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 .....

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in Singh (supra), the fulcrum of the controversy 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, .....

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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 resp .....

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s of the judicial officers concerned. They cannot 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) .....

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although in Hari Vishnu Kamath (supra), the Supreme 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 s .....

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parties in whose favour orders had been passed 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 n .....

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om, 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 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 .....

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such tribunals need not be arrayed as parties. 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 .....

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