TMI Blog1995 (8) TMI 342X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner and Mr. A. M. Gordey, 'A' Panel Counsel appearing on behalf of the respondent No. 1, on this question. 4. During the course of arguments, since wider issue of classification of writ petitions/ applications under Articles 226 and 227 of the Constitution of India arose, we directed the Deputy Registrar to notify to the learned members of the Bar to address this Court about classification of writ petitions under Articles 226 and 227 of the Constitution of India and despite the general notification to the learned members of the Bar, none of the other Advocates appeared to assist the Court though the issue of wider importance is involved in the case about classification of writ petitions. 5. Article 226 of the Constitution of India empowers the High Court to issue orders or writs including writs in the nature of habeas corpus, mandamus, prohibition, quo warrantor and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose. The Constitution does not provide that the jurisdiction to be exercised by the High Court under Article 226 would be Civil or Criminal. By Article 227 of the Constitution of India, the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Civil Applications under Articles 226 , 227 and 228 of the Constitution. 9. In Chapter X which deals with the subject, Warned List, Weekly and Daily Boards , Rule 1 provides that the Chief Justice will nominate from time to time seven Judges to be in charge of the classes of the proceedings mentioned in that rule and clauses (3) and (4) deal with Writ Petitions (Division Bench) and Writ Petitions (single Judge) and Clauses (6) and (7) deal with Criminal Appeals and Applications (Division Bench) and Criminal Appeals, Revision Applications and other single Judge's Criminal matters. 10. Petitions under Articles 226 and 227 of the Constitution and applications under Article 228 of the Constitution and the rules for the issue of writs and orders under the said Articles, is also the subject-matter of Chapter XVII and in Rule l(i) thereof, it is provided that every application for the issue of a direction, order or writ under Article 226 of the Constitution shall, if the matter in dispute is or has arisen substantially outside Greater Bombay, be heard and disposed of by a Division Bench to be appointed by the Chief Justice, and the application shall set out therein the relief ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the rules, viz. somewhere as writ petitions, at some places as petitions under Articles 226 and 227 of the Constitution of India, at various places as applications under Articles 226 and 227 of the Constitution and the Register that is required to be maintained by the High Court for such petitions/applications is as 'Special Civil Applications' under Articles 226 and 227 of the Constitution of India. 14. It is in this background that we thought it fit to deal with this matter at greater length as a larger issue regulating the business of this Court on appellate side under Articles 226 and 227 of the Constitution of India. We chatted the Deputy Registrar to find out as to whether the writ petitions filed under Articles 226 and 227 of the Constitution are registered by the High Court in the register maintained under the head Special Civil Applications under Articles 226 , 227 and 228 of the Constitution of India or not as required in clause (vi) of Rule 10 of Chapter V, the Deputy Registrar told us that the petitions/applications under Articles 226 and 227 of the Constitution presented to this Court on the Appellate Side are registered in the separate register titled a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le to a pecuniary penalty which is recoverable as a civil debt; in such an instance contravention is not a crime. 16. In State of U. P. v. Mukhtar Singh, AIR1957All505 , the Division Bench of the Allahabad High Court considered the nature of the proceedings under Article 226 of the Constitution of India. One of the Judges, Beg, J. explaining the nature of proceedings, held that whether a proceeding is civil of not, depends on the nature of the subject-matter of the proceeding and its object and not on the mode adopted or the form provided for enforcement of right. According to His Lord ship, a proceeding which deals with the right of civil nature and otherwise of civil nature does not cease to be so just because the party chooses resort to Article 226 of the Constitution for enforcement of such right. The fact that a right has been created by the Constitution or the forum for its enforcement prescribed by it should not make any difference, if the subject-matter of the right sought to be agitated in the proceedings is itself of a civil nature, and the object of the proceedings is merely the enforcement of such a right, and not punishment of a wrong. On the other hand, Desai, J. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... criminal law, the proceedings would be criminal proceedings. If the relief asked is for enforcement or in exercise of a civil right to prevent infringement of a civil right, the proceedings will be civil in nature. Similarly, if the relief is sought in relation to the enforcement of the taxation law, the proceedings would be revenue in nature. It is difficult to accept the contention of Mr. Joshi that proceeding's under Art. 226 are either civil or criminal in nature. On the other hand, we agree, with respect, with the view taken by the Patna High Court that the writ application may be a civil proceeding according to the nature of the application and the questions raised and decided in the proceedings. In the instant case, as already stated, the assessee sought to get quashed the notices issued under Section 34 of the Income Tax Act, and also prayed for an order restraining the Income Tax Officer from taking any action in enforcement of the notices. In other words, in the proceedings under the Income Tax Act, as already stated, are revenue in nature. The writ proceedings with which we were dealing, therefore, were revenue in nature. 18. The question whether a writ proceedi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of cases arising before the High Courts, the Supreme Court in paras. 14 and 16 of the aforesaid report held thus:-- 14. A large number of cases have arisen before the High Courts in India in which conflicting views about the meaning of the expression civil proceedings were expressed. In some cases it was held that the expression civil proceedings includes a proceeding instituted in the High Court for the issue of a writ whatever may be the nature of the right infringed and the relief claimed; in other cases it has been held that a proceeding resulting from an application for a writ under Art. 226 of the Constitution may in certain cases be deemed to be a civil proceeding , if the claim made, the right infringed and the relief sought warrant that inference; in still another set of cases it has been held that even if a proceeding commenced by a petition for a writ be generally categorised as a civil proceeding, where the jurisdiction which the High Court exercises relates to revenue, the proceeding is not civil. A perusal of the reasons given in the cases prompt the following observations. There are two preliminary conditions to the exercise of the power to grant certific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roperty. A criminal proceeding also includes orders for maintenance of law and order and the orders aimed at preventing vagrancy, on the other hand, the civil proceeding is one in which a persons approaches the Court against the alleged infringement of civil right against any person or the State and gets a declaration and, if claims are proved, gets a declaration of his right claimed and relief. Payment of debt, damages, compensation, delivery of specific property, enforcement of personal rights and determination of status are some of the cases which are falling under the category of civil proceeding. 21. In the light of the aforesaid legal position explaining the nature of proceedings under Article 226 of the Constitution, and the classification whether the said proceeding is civil or criminal, when the provisions of the Appellate Side Rules are looked into, it would be found that all applications under Article 227 of the Constitution challenging the orders and decisions of the Courts constituted under the Criminal Procedure Code are dealt with on the side of criminal business of the Appellate Side of this Court, but the said clause (i) of Part II, Criminal of Rule 2 of Chapte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petition' shall also take in its embrace the petitions/applications under Article 226 or 227 of the Constitution of India if it arises out of or relates to investigation, enquiry or trial of the offences either under special or general statute. When a statute commands or prohibits an act, disobedience of such statute is prima facie criminal unless criminal proceedings are excluded by such statute and the petitions/ applications under Articles 226 and 227 of the Constitution of India in connection thereto or arising therefrom would be criminal proceeding and should be styled as 'Criminal Writ Petition'. However, such cases are to be distinguished from the cases where an act may be prohibited or commanded by the statute in such a manner that the person contravening the provision is liable to pecuniary penalty and such recovery is to be made a civil debt. In such type of cases the contravention would not be a crime and, therefore, petitions/applications* under Articles 226 and 227 of the Constitution of India arising therefrom would not be criminal proceeding. 22. We would, therefore, direct the Registrar (Appellate Side), the High Court of Judicature at Bombay to take ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out their lawful business of receiving signals through the satellite channels and in turn render their services to respective members and TV set holders. Petitioner has also sought for a writ of mandamus or any other appropriate writ, order or direction restraining the 1st respondent, its servants, agents or officers or anyone claiming through or under him by a permanent order of injunction from raiding or from seizing any equipment enlisted in Annexure-B to the petition from the control rooms of the members and the like operators and/ or causing any obstruction and/ or interference or to take any steps to cause any obstruction and/or interference in carrying out their regular business as lawful cable operators by receiving signals from satellite and in turn render services to its various members and TV set holders in any manner whatsoever. Obviously, the petitioner is seeking a relief which otherwise (sic) largely could be claimed by it under Section 60 of the Copyright Act, 1957 which provides that any person claiming to be the owner of copyright in any work by circulars, advertisements, or otherwise, threatens any other person with any legal proceedings or liability in respect ..... X X X X Extracts X X X X X X X X Extracts X X X X
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