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2018 (10) TMI 1756

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..... 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 the provisions of Section 4 of the High Court Act, against the order passed by the learned Single Judge exercising powers under Article 227 of the Constitution of India is not maintainable - Appeal dismissed. - Writ Appeal No.100192/2018 [GM-R/C] - Dated:- 11-10-2018 - Mr. B.Veerappa And Mr. H.T. Narendra Prasad, JJ. Sri. S.S. Naganand, Senior Adv. For Sri. Shrikant T Patil, For The Appellant. Sri. M.T. Nanayya, Senior Advocate For SRI. K L patil, adv. for The Respondent. JUDGMENT B.Veerappa, The present appellant, who is the respondent before the learned Single Judge, has filed this intra-court appeal against the order dated 29.05.2018 made in WP No.85687/2013 by the learned Single Judge of this Court, allowing the writ petition in part, thereby the order of the District and Sessions Court holding that the petitioner is a Trustee for five years is set-aside. The further decla .....

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..... eminded 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 the Trust, 2 persons i.e. Shri Basant Kumar Thimmanagouda Patil and Sri. A.V. Patil were inducted as Trustees of the Trust. Thereafter, a change report was submitted by the representatives of the Trust to effect necessary changes in the PTR maintained by the Assistant Charity Commissioner. This was supported by consent letter by the newly inducted Trustees. The Assistant Charity Commissioner held enquiry No.346/1996 and after recording the statement of the official of the Trust passed orders on 10.05.1996, whereby the change report was accepted and necessary directions were issued to include the names of Shri. A.V. Patil and Basantkumar Patil in the PTR. Subsequently, by resolution dated 29.04.1996, the said persons were included as Trustees for a period of five years. Things stood thus, on 3.7.2012, Sri. Basantkumar T Patil, submitted his resignation to the Trust and .....

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..... arned 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 by the District Court and granted new relief which was not sought in the original petition filed before the District Court or in the prayer sought in the writ petition. Therefore, the writ appeal is maintainable before this Court under the provisions of Section 4 of the Karnataka High Court Act, 1961. He would further contend that admittedly, the appellant appointed the respondent as Trustee for a period of five years, the same was rightly approved by the learned District and Sessions Judge exercising his power under Sections 3 and 7 of the Act and the same is reversed by the learned Single Judge of this Court and granted altogether new relief. Though the writ petition filed before the learned Single Judge is under Articles 226 and 227 of the Constitution, but the learned Single Judge of this Court exercised his power while passing the impugned order under Article 22 .....

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..... 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 parties in the present appeal is as to: Whether the proceedings before the learned Single Judge was initiated in exercise of original jurisdiction under Article 226 of the Constitution of India or the proceedings in exercise of supervisory jurisdiction under Article 227 of the Constitution of India? 15. The present respondent who filed the writ petition before the learned Single Judge both under Articles 226 and 227 of the Constitution of India was to quash the order dated 19.08.2013 passed in Misc.131/2012 on the file of the Prl. and District Sessions Judge, Dharwad, wherein the learned Prl. District and Sessions Judge had allowed the petition filed by the present appellant under the provisions of Sections 3 and 7 of the Charitable and Religious Trust Act, 1920 approving the meeting held on 25.07.2012 in part holding the appointment of the respondent as one of the T .....

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..... ied 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 that were already adjudicated upon by the District Court. Therefore, the first point raised in the present appeal has to be answered by holding that the learned Single Judge invoked the supervisory jurisdiction of the High Court under Article 227 of the Constitution of India and not the original jurisdiction under Article 226 of the Constitution of India. 19. In order to decide the maintainability of the present appeal, it is worthwhile to rely upon provisions of Section 4 of the High Court Act, 1961, under which the present appeal is filed reads as under: 4. Appeals from decisions of a single Judge of the High Court - An appeal from a judgment, decree, order or sentence passed by a single Judge in the exercise of the original jurisdiction of the High court under this Act or under any law for the time being in force, shall lie to and be heard by a Bench consisting of .....

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..... assed 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 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. VI. DICTUMS OF THE APEX COURT RELIED UPON 24. In the very judgment relied upon by the learned counsel for the appellant in th .....

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..... 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 pertains to demand and payment of court fees. We do not intend to comment on the same as that would depend upon the rules framed by the High Court. 25. The Hon ble Apex Court in the case of RADHEY SHYAM VS. CHHABI NATH reported in [(2015) 5 SCC 423) (THREE JUDGES) at paragraphs 22 to 27 has held as under: 22. We may now come to the judgment in Surya Dev Rai. Therein, the appellant was aggrieved by denial of interim injunction in a pending suit and preferred a writ petition in the High court stating that after the CPC amendment by Act 46 of 1999 w.e.f. 1-7-2002, remedy of revision under Section 115 was no longer available. The High Court dismissed the petition following its Full Bench Judgment in Ganga Saran to the effect that a writ was not maintainable as no mandamus could issue to a private person. The Bench considered the question of the impact of CPC amendment on .....

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..... e 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 jurisdiction though available is being exercised in a manner which tantamounts to overstepping the limits of jurisdiction. 25. Upon a review of decided cases and a survey of the occasions, wherein the High Courts have exercised jurisdiction to command a writ of certiorari or to exercise supervisory jurisdiction under Article 227 in the given facts and circumstances in a variety of cases, it seems that the distinction between the two jurisdictions stands almost obliterated in practice. Probably, this is the reason why it has become customary with the lawyers labelling their petitions as one common under Articles 226 and 227 of the Constitution, though such practice has been deprecated in some judicial pronouncement. Without entering into niceties and technicality of the subject, we venture to state the broad general difference between the two jurisdictions. Firstly, the writ of .....

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..... rts 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 jurisdiction is regulated by the 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. The Bench in Surya Dev Rai also observed in para 25 of its judgment that distinction between Articles 226 and 227 stood almost obliterated. In para 24 of the said judgment distinction in the two articles has been noted. In view thereof, observation that scope of Article 226 and 227 was obliterated was not correct as rightly 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 t .....

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..... ising 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." (emphasis supplied) 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. 26. The said judgment has been reiterated in the subsequent judgment in Jogendrasinhji Vijaysinghji s case supra. 27. Considering the provisions of Articles 226 and 227 of the Constitution of India in the case of HIMALAYAN CO-OP. GROUP HOUSING SOCIETY VS. BALWAN SINGH AND OTHERS reported in [(2015) 7 SCC 373] relying upon the earlier judgment in the case of Radhey Shyam Vs. Chhabi Nath reported in (2015) 5 SCC 423, has held at paragraphs 15 to 17 as under: 15. The first issue need not detain us for long. It is the stan .....

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..... 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 set aside the orders passed by the authorities below. Even if the said petitions(s) were styled as a petition under Article 226, the content and the prayers thereunder being ones requiring exercise of supervisory jurisdiction only, could be treated as petitions filed under Article 227 of the Constitution only. 28. While considering similar issue under Articles 226 and 227 with regard to the maintainability of the writ appeal in a latest judgment of the Hon ble Apex Court in the case of LIFE INSURANCE CORPORATION OF INDIA VS. NANDINI J.SHAH reported in AIR 2018 SC 1197 (presided by three judges) considering the earlier judgments relied upon by both learned Senior Counsel for the appellant and the learned Senior Counsel for the respondent in the case of Radhey Shyam Vs. Chhabi Nath and Jogendrasinhji Vijaysinghji Vs. State of Gujarat, the Hon ble Apex Court at paragra .....

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..... ingly, 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. Similar view has been expressed in Jogendrasinhji (AIR 2015 SC 3623, para 25) (supra). In this decision, it has been held that the order passed by the Civil Court is amenable to scrutiny only in exercise of jurisdiction under Article 227 of the Constitution of India and no intra court appeal is maintainable from the decision of a Single Judge. In paragraph 30 of the reported decision, the Court observed thus: 30. From the aforesaid pronouncements, it is graphically clear that maintainability of a letters patent appeal would depend upon the pleadings 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 (AIR 2015 SC 3269) (s .....

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..... e 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 judgment, the Division Bench merely went by the decisions of the Delhi High Court and its own Court in Nusli Neville Wadia [2010 (4) AIR BOM. R. (NOC) 397] (supra) and Prakash Securities Pvt. Ltd. (supra). We do not find any other analysis made by the Division Bench to entertain the Letters Patent Appeal, as to in what manner the judgment of the learned Single Judge would come within the purview of exercise of powers under Article 226 of the Constitution of India. Absent that analysis, the Division Bench could not have assumed jurisdiction to entertain the Letters Patent Appeal merely by referring to the earlier decisions of the same High Court in Nusli Neville Wadia and Prakash Securities Pvt. Ltd. 55. In other words, the Division Bench of the Bombay High Court ought to have dismissed the Letters Patent Appeal filed by the respondents as not maintainable. In that event, i .....

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