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1994 DIGILAW 263 (CAL)

Ajoy Kumar Ghosh v. State of West Bengal

1994-08-22

SATYABRATA SINHA

body1994
Judgment 1. This writ application has been filed in the original side of this court. Mr. Dipankar Dutt, the learned Advocate appearing for the respondent No.5, while filing an application for vacating the interim order passed on 21st May, 1983 has raised a preliminary objection that no part of the cause of action arose within the jurisdiction of the original side of this court, and this writ application is not, as such, maintainable. The learned Advocate for the respondent No.5 in support .of his aforesaid contention relied upon the decision of the Division Bench of this court in FMAT No. 3578 of 1984, the (1) University of Calcutta v. Sri Shyamal Kumar Das & Ors, reported in 1985 Calcutta High Court Notes Volume 1 page 187 as also the decision in T.NO. 37 of 1985, the (2) University of Calcutta v. Subrata Mukhopadhyay & Ors., reported in 1986 CHN Volume I page 169. 2. This court in exercise of its jurisdiction under Article 226 of the Constitution of India has framed rules relating to applications under Article 226 of the Constitution of India. Rule 4 of the said rules provide for filing of an application, whether it relates to a person or authority, whether exercising the civil, criminal or ether jurisdiction, to be dealt with by the Original Side. Similarly, rule 7 of the aforesaid rules specifies that all other applications, whether they relate to person, authority or court in exercising civil, criminal or other jurisdiction, shall be dealt with by the Appellate side of this court and the application will be marked as "Appellate Side Application". There cannot be any doubt that ordinarily all applications, the cause of action whereof arises within the territorial jurisdiction of the Original Side of this court, is to be filed in terms of rule 4 aforementioned where as all other applications are to be filed in terms of rule 7. 3. The Division Benches of this court in the decisions-referred to by Mr. Dutt held that an application filed in the Original Side of this court shall not be entertained if the same was entertainable on the Appellate Side and similarly an application which was entertainable on the Appellate Side should not have been entertained on the Original Side of this court. 4. Dutt held that an application filed in the Original Side of this court shall not be entertained if the same was entertainable on the Appellate Side and similarly an application which was entertainable on the Appellate Side should not have been entertained on the Original Side of this court. 4. Article 226 of the Constitution of India confers jurisdiction upon the High Court to issue appropriate writ in relation to any matter, the cause of action whereof arises within their teritorial jurisdiction. This court exercises its jurisdiction under Article 226 of the Constitution of India not by reason of rules framed by this court but in terms of the constitutional mandate as en grafted in Article 226 itself. This bench has also been given determination by the Hon'ble the Chief Justice to entertain writ application both on the Original Side as also on the Appellate Side. 5. In such situation, in my opinion, there can not be any bar in exercise of this court's inherent jurisdiction to give liberty to the petitioner convert an application filed on the Original Side as an application filed on the Appellate Side. Such inherent power of the court is not and cannot be curtailed by the rules framed by this court particularly when this court, as indicated hereinbefore, has the requisite determination to entertain the matter both on the original side as also on the Appellate Side. The Supreme Court, times without number, has clearly held that the rules are handmaid of justice, reference can be made to the case of (3) Jai Jai Ram Manohar Lal v. National Building Material Supply, Gurgaon reported in AIR 1969 Supreme Court page 1267. It is also well settled that in the event an appeal is not maintainable this court in exercise of its inherent power can direct conversion thereof into a civil revision application and vice versa. 6. In this view of the matter, in my opinion, there can not be any reason, whatsoever, as to why this court can not exercise its inherent jurisdiction to permit the writ petitioner to convert this application into one on the Appellate Side. Let this application be converted into an application filed on the Appellate Side of this court, as prayed for by Mr. Chakraborty. All parties concerned are to act on a xerox signed copy of this dictated order on the usual undertaking.