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2018 (10) TMI 1756

..... Constitution of India or the proceedings in exercise of supervisory jurisdiction under Article 227 of the Constitution of India? HELD THAT:- The true nature and substance of the order of the learned Single Judge was to exercise power under Article 227 of the Constitution of India. There is no indication of the Court having exercised powers under Article 226 of the Constitution of India as such. Indeed, the learned Single Judge has opined in the judgment by fairly noting the fact that the writ petition filed by the respondent was under Articles 226 and 227 of the Constitution of India. The learned Single Judge in the entire order reiterating the pleadings, issues and both oral and documentary evidence adjudicated before the learned District Judge has proceeded to pass the impugned order which clearly depicts that the learned Single Judge has exercised the power under Article 227 of the Constitution of India. It is clear that the impugned order has been passed by the learned Single Judge in exercise of powers under Article 227 of the Constitution of India and therefore, the present appeal filed under Section 4 of the High Court Act, is not maintainable. The writ appeal filed under th .....

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..... and Board of Trustees of Trust contending that the Institution is an ancient institution and founded by dedicated services, honest and sincere efforts of the founder Trustee Padmashree Saradar Veerangounda Patil, Smt. Nagamma Patil and all other Trustees of the Board. Because of the sincere and hard work of the members of the Trust, the Trust established educational institutions and was running Balika Ashrama, Primary School, D.Ed. Course, Composite Junior College, Girls hostel, ITI Course, Nursing Course, Degree College, Women s Hostel etc. From the beginning, the Trust is engaged in providing better education and is working for the upliftment of all the needy students and working women. The Trust is a prestigious institution having its own culture and heritage. The Trust is getting its accounts audited year to year from the renowned Chartered Accountant and the likeminded people who are interested in imparting quality education are included as Trustees of the Institution and there are 4000 students who are getting quality education from the renowned staff members employed by the Trust. 3. It was further contended that on 16.03.1996 in the meeting of the Management Committee of th .....

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..... ed Principal District and Sessions Judge, Dharwad. 6. The learned Single Judge of this Court after hearing both the parties, by the impugned order dated 29.05.2018, allowed the petition in part holding that the respondent/petitioner as a Trustee for a period of five years is set-aside. The further declaration that only the Chairman is entitled to be a Life Trustee is modified and it is held that the Chairman Smt. Laxmibai and the petitioner-present respondent having been appointed prior to 29.04.1996 are entitled to hold the office of Trusteeship for life as provided under bye-law 6 till they are capable of holding office. Hence, the present appeal is filed by the appellant. III. ARGUMENTS ADVANCED BY THE LEARNED SENIOR COUNSEL FOR THE PARTIES: 7. We have heard the learned Senior Counsel for the parties to the lis on the maintainability of the appeal raised by the learned Senior Counsel for the respondent. 8. Sri. S.S. Naganand, the learned senior counsel appearing on behalf of the appellant contended that the learned Single Judge of this Court has exercised the power of the original jurisdiction under Articles 226 and 227 of the Constitution of India and modified the order passed .....

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..... of Article 227 of the Constitution of India by setting aside the order passed by the District and Sessions Judge. Therefore, the writ appeal is not maintainable. 11. In support of his contentions, the learned senior counsel for the respondent has relied upon the following judgments: i) Radhey Shyam Vs. Chhabi Nath reported in (2015) 5 SCC 423. ii) Himalayan Coop. Group Housing Soceity Vs. Balwan Singh, (2015) 7 SCC 373. IV. POINTS FOR DETERMINATION: 12. In view of the above rival contentions urged by the learned Senior Counsel for the parties, the points that arise for consideration in this appeal are: i) Whether the learned Single Judge has exercised his power under original jurisdiction under Article 226 or supervisory jurisdiction under 227 of the Constitution of India? ii) Whether the present appeal filed under Section 4 of the Karnataka High Court Act, 1961, is maintainable against the impugned order passed by the learned Single Judge of this Court? V. DETERMINATION/CONSIDERATION 13. We have given our thoughtful consideration to the arguments advanced by the learned senior counsel for the parties and perused the entire appeal papers carefully. 14. The controversy between the .....

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..... the petitioner has not elected to challenge the entry in the register and hence, it has held that the entry being final, it is not open for the petitioner to contend otherwise. This finding per se is incorrect and factually wrong as the said entry has already been called in question by the respondent-Trust itself in its application dated 30.07.2001. 18. The learned Single Judge at paragraph 19 has recorded that it is only on 29.04.1996, a Resolution came to be passed by the Board whereby the Office of the Trusteeship of life was converted into an office of fixed tenure of five years. Hence, the induction of the petitioner on 16.03.1996 was under the unamended Clause 6 which provided only for appointment on life time basis. The learned Single Judge proceeded to pass the impugned order based on the pleadings, evidence of PW-1, DW-1 and Exs.P.1 to 18, Exs.D.1 to 14 relied upon by the Prl. District and Sessions Judge, Dharwad. Though the writ petition came to be filed both under Articles 226 and 227 of the Constitution of India, a careful reading of the order passed by the learned Single Judge clearly depicts that the challenge made in the writ petition was with respect to the points .....

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..... allenge in a petition is with respect to the points already adjudicated upon as has been done in the present case by the District Court exercising the powers under the provisions of Sections 3 and 7 of the Charitable and Religious Trust Act, 1920, then it has to be held that supervisory jurisdiction of the High Court was invoked and not original jurisdiction. 22. A Full Bench of this Court in the case of G.PATTEDAR VS. MAHABOOB SHAHI KULBARGA MILLS (Full Bench presided over by Five Judges) reported in (AIR 2005 KAR 377) considering the provisions of Articles 226 and 227 of the Constitution of India read with Section 4 of the High Court Act, at paragraphs 5, 12 and 13 has held that Section 4 of the High Court Act provides for an intra Court appeal only against the order of the learned Single Judge passed in exercise of its original jurisdiction and against any order passed under Article 227 in exercise of supervisory jurisdiction, the appeal is not maintainable under Section 4 of the High Court Act. 23. On a close scrutiny of the impugned order dated 29.05.2018 passed by the learned Single Judge in W.P.No.85687/2013, we have no hesitation in taking a view that true nature and substa .....

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..... f 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 jurisdiction under Article 226 or under Article 227 or both, needless to emphasise, would depend upon various aspects that have been emphasised in the aforestated authorities of this Court. There can be orders passed by the learned Single Judge which can be construed as an order under both the articles in a composite manner, for they can co-exist, coincide and imbricate. We reiterate it would depend upon the nature, contour and character of the order and 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 conclusions recorded by the High Court in the impugned judgment .....

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..... Court under Article 226 of the Constitution. * * * 24. The difference between Articles 226 and 227 of the Constitution was well brought out in Umaji Keshao Meshram v. Radhikabai [1986 Supp. SCC 401]. Proceedings under Article 226 are in exercise of the original jurisdiction of the High Court while proceedings under Article 227 of the Constitution are not original but only supervisory. Article 227 substantially reproduces the provisions of Section 107 of the Government of India Act, 1915 excepting that the power of superintendence has been extended by this article to tribunals as well. Though the power is akin to that of an ordinary court of appeal, yet the power under Article 227 is intended to be used sparingly and only in appropriate cases for the purpose of keeping the subordinate courts and tribunals within the bounds of their authority and not for correcting mere errors. The power may be exercised in cases occasioning grave injustice or failure of justice such as when (i) the court or tribunal has assumed a jurisdiction which it does not have, (ii) has failed to exercise a jurisdiction which it does have, such failure occasioning a failure of justice, and (iii) the jurisdictio .....

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..... erogative writs in England have no role to play under our constitutional scheme. There is no parallel system of King's Court in India and of all the other courts having limited jurisdiction subject to the supervision of the King's Court. Courts are set up under the Constitution or the laws. All the courts in the jurisdiction of a High Court are subordinate to it and subject to its control and supervision under Article 227. Writ jurisdiction is constitutionally conferred on all the High Courts. Broad principles of writ jurisdiction followed in England are applicable to India and a writ of certiorari lies against patently erroneous or without jurisdiction orders of Tribunals or authorities or courts other than judicial courts. There are no precedents in India for the High Courts to issue writs to the subordinate courts. Control of working of the 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 the civil court stand on different footing from the orders of authorities or Tribunals or courts other than judicial/civil courts. While appellate or revisional jurisdi .....

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..... appreciation of the ratio in Surya Dev and in view of the recent amendment to Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999. It is urged that as a result of the amendment, scope of Section 115 CPC has been curtailed. In our view, even if the scope of Section 115 CPC is curtailed that has not resulted in expanding the High Court's power of superintendence. It is too well known to be reiterated that in exercising its jurisdiction, High Court must follow the regime of law. 67. As a result of frequent interference by the Hon'ble High Court either under Article 226 or 227 of the Constitution with pending civil and at times criminal cases, the disposal of cases by the civil and criminal courts gets further impeded and thus causing serious problems in the administration of justice. This Court hopes and trusts that in exercising its power either under Article 226 or 227, the Hon'ble High Court will follow the time honoured principles discussed above. Those principles have been formulated by this Court for ends of justice and the High Courts as the highest courts of justice within their jurisdiction will adhere to them strictly." .....

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..... efore, expected to exercise such wide powers with great care, caution and circumspection. The exercise of jurisdiction must be within the well- recognised constraints. (emphasis supplied) 16. The scope and extent of power of the Writ Court in a petition filed under Article 226 and 227 of the Constitution came up for consideration before three Judge Bench of this Court in the recent case of Radhey Shyam and Anr v. Chhabi Nath [(2015) 5 SCC 423]. This Court observed that the Writ of Certiorari under Article 226 though directed against the orders of an inferior court would be distinct and separate from the challenge to an order of an inferior court under Article 227 of the Constitution. The supervisory jurisdiction comes into play in the latter case and it is only when the scope and ambit of the remedy sought for does not fall in the purview of the scope of supervisory jurisdiction under Article 227, the jurisdiction of the Court under Article 226 could be invoked. 17. In the present case, what was challenged by the members of the Society was an order passed by the Registrar and the Revisional Authority under the provisions of the Act and the Rules framed thereunder. The prayer was to .....

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..... 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 rightly observed in the referring order in paras 26 and 27 quoted above. 26. xxx xxx xxx 27. Thus, we are of the view that judicial orders of civil courts are not amenable to a writ of certiorari under Article 226. We are also in agreement with the view of the referring Bench that a writ of mandamus does not lie against a private person not discharging any public duty. Scope of Article 227 is different from Article 226. 28. xxx xxxx xxx 29. Accordingly, we answer the question referred as follows: 29.1 Judicial orders of civil court are not amenable to writ jurisdiction under Article 226 of the Constitution; 29.2 Jurisdiction under Article 227 is distinct from jurisdiction under Article 226. 29.3 Contrary view in Surya Dev Rai is overruled. (emphasis supplied) 52 .....

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..... e beginning that three issues arise despite the High Court framing number of issues and answering it at various levels. 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 jurisdiction under Article 227 of the Constitution has to be guided by the parameters laid down by this Court and some of the judgments that have been referred to in Radhey Shyam (supra). 53. In paragraph 45.2 of the same judgment, the Court authoritatively concluded that an order passed by a Civil Court is amenable to scrutiny of the High Court only 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 (AIR 2015 SC 3269) (supra), no writ can be issued against the order passed by the Civil Court and, therefore, no letters patent appeal would be maintainable. 54. In the impugned judgme .....

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..... red in negative holding that the present appeal under Section 4 of the High Court Act, 1961, is not maintainable against the impugned order passed by the learned Single Judge under Article 227 of the Constitution of India. 30. The judgments relied upon by the learned counsel for the appellant in the cases of MAVJI C.LAKUM VS. CENTRAL BANK OF INDIA reported in [(2008) 12 SCC 726], STATE OF MADHYA PRADESH AND OTHERS VS. VISAN KUMAR SHIV CHARAN LAL reported in [(2008) 15 SCC 233), M.M.T.C.LIMITED VS. COMMISSIONER OF COMMERCIAL TAX AND OTHERS reported in [(2009) 1 SCC 8], ASHOK K.JHA AND OTHERS VS. GARDEN SILK MILLS LIMITED AND ANOTHER reported in [(2009) SCC 584] and MOHAMMAD YUNUS VS. MOHD. MUSTAQIM reported in [AIR 1984 SC 38) stated supra are earlier judgments and they have no application to the facts and circumstances of the present case. 31. The judgment in the case of SHALINI SHYAM SHETTY VS. RAJENDRA SHANKAR PATIL reported in [(2010) 8 SCC 329] and JOGENDRASINHJI VIJAYSINGHJI VS. STATE OF GUJARAT reported in [(2015) 9 SCC 1] have been considered in the case of RADHEY SHYAM VS. CHHABI NATH reported in [(2015) 5 SCC 423) and LIFE INSURANCE CORPORATION OF INDIA VS. NANDINI J.SHAH .....

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