This article examines the proposition of law in light of the Supreme Court's recent judgment, Sh. Jogendrasinhji Vijaysinghji v. State of Gujarat & Ors. ("Jogendrasinhji") in which the Court clarifies the existing position of law in relation to the jurisdiction of the High Court under Articles 226 and 227 of the Constitution of India ("Constitution") for the purpose of assuming the maintainability of an appeal under Clause 15 of the Letters Patent.
The appellants were the original owners of an agricultural land (admeasuring 6,070 sq.m.) in Narol, District Ahmedabad ("Appellants"). The proceedings under the provisions of the Gujarat Urban Land (Ceiling and Regulation) Act, 1976 ("Urban Land Act") were initiated pursuant to filing of Form 1 by the owners with respect to the holding of their land. The Deputy Collector, ULC, Ahmedabad ("Competent Authority") declared the land (admeasuring 5,070 sq.m.) as a surplus land. Feeling dissatisfied with the order, the Appellants filed an appeal before the Urban Land Ceiling Tribunal. The appellate authority dismissed the appeal, thereby affirming the order passed by the Competent Authority.
The Appellants challenged the order passed by the Tribunal by filing a Special Civil Application under Articles 226 and 227 of the Constitution. The Single Judge rejected the Special Civil Application, thereby confirming the order passed by the appellate authority. Consequently, the Appellants filed an appeal under Clause 15 of the Letters Patent.
The Division Bench noticed conflict in the Revaben1 case and Dilavarsinhsinh Khodubha Jadeja v. State of Gujarat and Ors.2 Therefore, the Division Bench of this Court, vide order dated 13th August 2013, had to refer the matter to a Larger Bench.
Before we proceed with considering the rulings of the Supreme Court and various other High Courts in relation to the maintainability of a Letters Patent Appeal ("LPA") under Clause 15 of the Letters Patent, it is pertinent to know and analyze various provisions of law which are involved.
The noteworthy provisions of Article 226 of the Constitution are as follows:
Article 226 - Power of High Courts to issue certain writs –
(1) Notwithstanding anything contained in Article 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.
(2)The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories.
The relevant provisions of Article 227 of the Constitution are:
Article 227 - Power of superintendence over all courts by the High Court –
- Every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction.
- Without prejudice to the generality of the foregoing provisions, the High Court may-
- Call for returns from such courts;
- Make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts; and
- Prescribe forms in which books, entries and accounts shall be kept by the officers of any such courts.
The High Court of Judicature at Bombay was established by Letters Patent dated June 26, 1862, issued by the British Crown in pursuance of authority conferred upon it by the Indian High Courts Act, 1861. The Letters Patent issued in 1862 were revoked and replaced by Letters Patent dated December 28, 1865 which governs the chartered High Courts.
Clause 15 of the Letters Patent applicable to the High Court is quoted below:
Clause 15 - Appeal from the courts of original jurisdiction to the High Court in its appellate jurisdiction-
And we do further ordain that an appeal shall lie to the said High Court of Judicature at Madras, Bombay, Fort William in Bengal from the judgment (not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court and not being an order made in the exercise of revisional jurisdiction, and not being a sentence or order passed or made in exercise of the power of superintendence under the provisions of Section 107 of the Government of India Act, or in the exercise of criminal jurisdiction) of one Judge of the said High Court or one Judge of any Division Court, pursuant to Section 108 of the Government of India Act, and that notwithstanding anything hereinbefore provided, an appeal shall lie to the said High Court or one Judge of ant Division Court, pursuant to Section 108 of the Government of India Act, on or after the first day of February, 1929 in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court where the Judge who passed the judgment declares that the case is a fit one for appeal; but that the right to appeal from other judgments of Judges of the said High Court or of such Division Court shall be to Us, Our heirs or successors in Our or Their Privy Council, as hereinafter provided.
We may analyze the operative part of Clause XV as follows:
An appeal shall lie to the High Court of Judicature at Bombay –
- from a judgment
- of one Judge of the High Court
- pursuant to Section 108 of the Government of India Act, 1915
- not being –
- a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the High Court,
- an order made in the exercise of revisional jurisdiction,
- a sentence or order passed or made in the exercise of the power of superintendence under the provisions of Section 107 of the Government of India Act, 1915, or
- a sentence or order passed or made in the exercise of criminal jurisdiction.
Thus, from a plain reading of Clause 15 it is apparent that an appeal against an order passed in exercise of power of superintendence under Article 227 of the Constitution which is equivalent to Section 107 of the Government of India Act, 1935 is specifically prohibited by Clause 15 of the Letters Patent from its operation.
4. Current Position Of Law (Precedents)
Jurisdiction of High Court under Articles 226 and 227 of the Constitution
The Division Bench of the Bombay High Court3, while determining the jurisdiction of the High Court under Articles 226 and 227 of the Constitution held that, "The question that falls for our determination is as to what are the tests which are required to be applied by a Division Bench of the High Court for deciding the question of maintainability of a Letters Patent Appeal under Clause 15 of the Letters Patent against an order passed by a learned Single Judge where the Special Civil Application, out of which the appeal arises, has been described as an application both under Articles 226 and 227 of the Constitution of India and the learned Single Judge has not specifically described in the order impugned whether His Lordship has exercised the jurisdiction under Article 226 or under Article 227 of the Constitution of India. We also propose to deal with the situation where the learned Single Judge has specifically exercised jurisdiction either under Article 226 or Article 227 of the Constitution or both."
In light of what is held above, for ascertaining whether an order passed by a learned Single Judge is appealable under Clause 15 of the Letters Patent or not, the prime consideration is whether the learned Single Judge exercised original jurisdiction or not4.
At this stage, it may be profitable to refer to the definition of "original jurisdiction" as given in the Black's Law Dictionary, Sixth Edition, Centennial Edition, 1891-1991 which is: "Jurisdiction to consider a case in the first instance. Jurisdiction of court to take cognizance of a cause at its inception, try it, and pass judgment upon law and facts. Distinguished from appellate jurisdiction."
Further, according to Black's Law Dictionary, Ninth Edition, the term "original jurisdiction" means, "A court's power to hear and decide a matter before any other court can review the matter."
Furthermore, according to Advanced Law Lexicon, 3rd Edition, 2009 by P. Ramanatha Aiyar, the phrases "Court of original and Court of appellate jurisdiction" have been defined as follows: "Courts of original jurisdiction are those in which an action has its first source or existence and which do not take jurisdiction of it by appeal. Courts of appellate jurisdiction are those which review causes removed by appeal or error from another court."
Having said that, the Special Bench of five judges of the Bombay High Court5 held that Articles 226 and 227 of the Constitution operated in different fields and that in the exercise of its power under Article 226 the High Court exercises original jurisdiction as contrasted with its appellate or revisional jurisdictions and that where the original proceeding under Article 226 concerned civil rights, the proceeding under Article 226 would be an original civil proceeding and, therefore, an appeal would lie under Clause 15 of the Letters Patent against the judgment of a Single Judge in such a proceeding.
Writ of Certiorari
In view of the jurisdiction of the High Court under Articles 226 and 227 of the Constitution, what really needs to be understood is the essential characteristics of a writ of certiorari and the circumstances which warrant the issuance of this writ.
A writ of certiorari would lie against the orders of the subordinate courts and inferior tribunals. The High Court has power of superintendence over its tribunals within its territory, under Article 227 and, therefore, such tribunals are inferior tribunals, amenable to the writ jurisdiction of the High Court under Article 226 of the Constitution so that writs of certiorari and prohibition can be issued against them. If such tribunal assumes wrong jurisdiction, it can be stopped by a writ of prohibition and if it makes an order, which falls within the scope of the writ of certiorari, the same can be quashed under Article 226. The object of the writ of certiorari is to secure that the jurisdiction of the inferior tribunal should be properly exercised. This writ is issued to direct inferior courts, tribunal or authorities, to transmit to the court record of proceedings pending therein for scrutiny and, if necessary, for quashing the same6.
One of the essential features of a writ of certiorari is that the control which is exercised through it over judicial or quasi-judicial tribunals or bodies is not in an appellate but supervisory capacity. In granting a writ of certiorari the superior court does not exercise the powers of an appellate tribunal. It does not review or reweigh the evidence upon which the determination of the inferior tribunal 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 proceedings so to say is put out of the way as one which should not be detriment of any person.
As a writ of certiorari will be granted to remove the record of proceedings of an inferior tribunal or authority exercising judicial or quasi-judicial acts, ex-hypothesi it follows that the High Court in exercising its jurisdiction shall also act judicially in disposing of the proceedings before it. It is implicit in such a proceeding that a tribunal or authority which is directed to transmit the records must be a party in the writ proceedings, for, without giving notice to it, the record of proceedings cannot be brought to the High Court.
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 court making order is directly subordinate to the appellate court and ordinarily acts within its bounds, though sometimes wrongly or even illegally, but in the case of the latter, a writ of certiorari is issued to quash the order of a tribunal which is ordinarily outside the appellate or revisional jurisdiction of the court and the order is set aside on the ground that the tribunal or authority acted without or in excess of jurisdiction7.
In 2003, the Supreme Court8 highlighted the characteristic of the writ of certiorari and distinguished the same from the power of superintendence in the following way:
- The writ of certiorari is an exercise of its original jurisdiction by the High Court; exercise of supervisory jurisdiction is not an original jurisdiction and in this sense it is akin to appellate revisional or corrective jurisdiction.
- In a writ of certiorari, the record of the proceedings having been certified and sent up by the inferior court or tribunal to the High Court, the High Court if inclined to exercise its jurisdiction, may simply annul or quash the proceedings and then do no more. In exercise of supervisory jurisdiction the High Court may not only quash or set aside the impugned proceedings, judgment or order but it may also make such directions as the facts and circumstances of the case may warrant, may be by way of guiding the inferior court or tribunal as to the manner in which it would now proceed further or afresh as commended to or guided by the High Court. In appropriate cases the High Court, while exercising supervisory jurisdiction, may substitute such a decision of its own in place of the impugned decision, as the inferior court or tribunal should have made.
- The jurisdiction under Article 226 of the Constitution is capable of being exercised on a prayer made by or on behalf of the party aggrieved; the supervisory jurisdiction is capable of being exercised suo motu as well.
Application under both, Articles 226 and 227 of the Constitution
It is a well-settled law as pointed out by the Supreme Court in the case of Vinita M. Khanolkar v. Pragna M. Pai & Ors.9 that any statutory provision barring an appeal or revision cannot cut across the constitutional power of a High Court. Even the power flowing from the paramount charter under which the High Court functions would not get excluded unless the statutory enactment concerned expressly excludes appeals under Letters Patent.
In another case of the Supreme Court10, a two-judge bench of the Supreme Court was considering whether the application was really under Article 226 or 227 of the Constitution. It was held that if the judgment under appeal had fallen squarely within four corners of Article 227, intra court appeal from such judgment would not be maintainable, and, on the other hand, if the petitioner had invoked the jurisdiction of the High Court for issuance of certain writ under Article 226, although Article 227 is also mentioned, and principally the judgment appealed against falls under Article 226, the appeal would be maintainable.
The two-judge bench of the Supreme Court in Sushilabai Laxminarayan Mudliyar v. Nilchand Waghajibhai Shaha and Anr.11 held that if the facts justify a party in filing an application under either Article 226 or 227 of the Constitution and the party chooses to file his application under both these articles, the party should be given right of appeal under Clause 15 where the substantial part of the order sought to be appealed against is under Article 226.
According to the Supreme Court, where facts justify filing of the petition both under Articles 226 and 227 and the petition so filed is dismissed by the learned Single Judge on merits, the petition should be treated to have been made under Article 226 so as not to deprive the petitioner of his right to prefer Letters Patent Appeal before the Division Bench12.
The issues addressed by the Court in Jogendrasinhji, inter alia, include:
- The potential question of in what context the phrase 'original jurisdiction' appearing in Clause 15 of the Letters Patent 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, which is always original; and
- Under what situation, a Letters Patent Appeal is maintainable before a Division Bench.
Recently, a three-Judge Bench of the Supreme Court in Radhey Shyam & Anr. v. Chhabi Nath & Ors.13 while dealing with the correctness of law overruled the view laid down by a two-Judge Bench14 and held that "(i) Judicial orders of civil court are not amendable to writ jurisdiction under Article 226 of the Constitution; and (ii) jurisdiction under Article 227 is distinct from jurisdiction under Article 226".
This pronouncement of the Supreme Court makes it abundantly clear that an order passed by a civil court can only be assailed under Article 227 of the Constitution on the parameters of challenge laid down by the Court in a series of decisions, needless to emphasize that once the order is exclusively assailable under Article 227, no intra-court appeal or Letters Patent Appeal in respect of an order passed by a Single Bench is maintainable before a Division Bench.
Having said that, the next aspect adverted to by the Court is the circumstance under which a Letters Patent Appeal is maintainable before a Division Bench. Reliance was placed on the decision of the Supreme Court in Umaji Keshao Meshram and Ors. v. Radhikabai and Anr.,15 wherein it was held that, "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 226 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 barred either under the Letters Patent or some other enactment. The word "finally" used in Rule 18 of Chapter XVII of the Appellate Side Rules does not and cannot possibly have the effect of barring a right of appeal conferred by the Letters Patent. As we have seen above, an intra-court appeal against the judgment of a Single Judge in a petition under Article 226 is not barred while Clause 15 itself bars an intra-court appeal against the judgment of Single Judge in a petition under Article 227".
Additionally, the Court in Umaji Keshao apprehended that if a party chooses to file an application under Article 226 and 227 of the Constitution, the right of the party to appeal under Clause 15 of the Letters Patent would be based on the final order of the court. If the court ought to treat the application as being made under Article 226, and if in deciding the matter, the court gives ancillary directions which may pertain to Article 227, this ought not to deprive the 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. Various other courts while deciding the matter on this issue have reiterated similar views.
On the basis of the decision in Umaji Keshao, the Court clarified the position of law in this facet of the issue and held that, "maintainability of a letters patent appeal would depend upon the nature, contour and character of order passed by the Single Bench 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 Single Judge in exercise of jurisdiction under Article 226 or 227 of the Constitution or both".
The Supreme Court has significantly simplified the settled position of law in relation to the maintainability of a Letters Patent Appeal under Clause 15 of the Letters Patent.
The Court, on analyzing various judicial pronouncements, has clarified that an order passed by the civil court is only amenable to be scrutinized by the High Court in exercise of its jurisdiction under Article 227 of the Constitution that is different from Article 226 of the Constitution.
Therefore, making it profusely clear, the Court has held that a letters patent appeal is only maintainable before a Division Bench if the order sought to be challenged is decided by the Single Judge under Article 226 of the Constitution and not under Article 227 of the Constitution.
That clears the air as regards the jurisdiction of the appeal court under the Letters Patent Appeal arising from a single judge's order under Article 226 of the Constitution. It is also clear that no such appeal shall lie against a single judge's order under Article 227 of the Constitution. However, where a party prefers a Letters Patent Appeal under both Articles 226 and 227 of the Constitution, it would be for the Division Bench hearing the appeal to examine the nature of the appeal and in the author's respectful opinion, proceed only where it appears to be primarily under Article 226 of the Constitution and reject where the nature of such appeal is primarily under Article 227 of the Constitution.
2013 (1) GLH 440
2 1995 (1) GLH 58
3 Revaben and Ors. v. Vinubhai Purshottambhai Patel and Ors., 2013 (1) GLH 440
4 Revaben and Ors. v. Vinubhai Purshottambhai Patel and Ors., 2013 (1) GLH 440
5 State of Maharashtra v. Kusum Charudutt Bharma Upadhye, (1981) 83 BomLR 75
6 Dilavarsinh Khodubha v. State of Gujarat and Ors., AIR 1995 Guj 54
7 The King v. London County Council, (1931) 2 KB 215 (243)
8 Surya Dev Rai v. Ram Chandra Rai, AIR 2003 SC 3044
9(1998) 1 SCC 500
10 Ashok K. Jha and Ors. v. Garden Silk Mills Ltd. and Anr., (2009) 10 SCC 584
11 1993 Supp (1) SCC 11
12 Lokmat Newspapers Pvt. Ltd. v. Shankar Prasad, (1999) 6 SCC 275
13 2015 (3) SCALE 88
14 Surya Dev Rai v. Ram Chander Rai and Ors., (2003) 6 SCC 675
15 1986 (Supp) SCC 401
The content of this document do not necessarily reflect the views/position of Khaitan & Co but remain solely those of the author(s). For any further queries or follow up please contact Khaitan & Co at firstname.lastname@example.org