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Madhya Pradesh High Court · body

2007 DIGILAW 755 (MP)

JAIDEV SIDDHA v. JAIPRAKASH SIDDHA

2007-07-19

A.K.PATNAIK, DIPAK MISRA, K.K.LAHOTI

body2007
DIPAK MISRA, J. ( 1 ) PERCEIVING two conflicting views, one expressed in Smt. Shiva Dubey (Jheera) v. Sumit Ranjan Dubey (Jheera) (W. A. No. 310/06): 2006 (4) MPHT 420 Lakhan Lal Sonkar v. Gun Carriage Factory, 2007 (1) MPHT 335 and State of M. P. v. M/s. Wakankar, (2007)1 MPLJ 99 and the other in M/s. Ram and co. v. State of M. P. (W. A. 342/06) : ( 2007 (3) MPHT 325 ) pertaining to the maintainability of writ appeal under the provision of the M. P. Uchch Nyayalaya (Khand Nyaypeeth ko Appeal) Adhiniyam, 2005 (for brevity 'the act') the Division Bench referred the matter to the larger bench to put the controversy to rest and further to have the certitude in the field on certain parameters. Be it placed on record that the cavil relates to the bar provided under the proviso to sub-section (1) to Section 2 of the Act as regards the entertainability and acceptability of an appeal from an order passed under Article 227 of the Constitution of India. In this factual backdrop the matter has been placed before us. ( 2 ) AT the outset it is condign to mention that there is no necessity for advertence to the facts since the only question that has spiralled for delineation is when the Act by way of incorporation of the proviso to section 2 of the Act creates a bar for entertaining an appeal from an order passed under article 227 of the Constitution, and further there is employment of the expression "in exercise of original jurisdiction" in the main part of the said Section whether the appeal has to be restricted to an order passed under Article 226 of the Constitution exclusively. ( 3 ) MR. R. S. Jaiswal, learned senior counsel appearing for the appellant has submitted that the law laid down in the cases of smt. Shiva Dubey (supra) ( 2006 (4) MPHT 420 ) and Lakhan Lal Sonkar ( 2007 (1) MPHT 335 ) (supra) is absolutely correct inasmuch as the said decisions are in consonance with the view expressed by the Apex Court in many a judgment. Shiva Dubey (supra) ( 2006 (4) MPHT 420 ) and Lakhan Lal Sonkar ( 2007 (1) MPHT 335 ) (supra) is absolutely correct inasmuch as the said decisions are in consonance with the view expressed by the Apex Court in many a judgment. It is urged by him that the phraseology used 'in exercise of its original jurisdiction' cannot be interpreted in isolation to convey and mean only an order under Article 226 of the Constitution in the sense that the order under challenge is not from the inferior forums or tribunals in exercise of supervisory jurisdiction. It is his submission that the pleadings as a whole in the writ petition are to be scrutinised and the nature and various aspects of the order passed by the learned single Judge are to be scanned to find out whether it is an order under Article 226 or under Article 227 of the Constitution for there cannot be a straight jacket formula or a mechanical process to treat an order passed by a learned single Judge to be one under Article 226 or 227 of the Constitution as there can be overlapping and interlinking. ( 4 ) MR. R. K. Verma, learned counsel appearing for the contesting respondent No. 1, sounding a contra note, canvassed that when the language of the statute is absolutely unambiguous and clear, the same has to be followed in letter and spirit and by the interpretative process nothing should be incorporated to convey or place a different meaning. It is argued by him that there is a significant distinction between an order under Article 226 and one under Article 227 of the Constitution and if an order arising from a civil Court or a tribunal or any other statutory forum is challenged in a writ petition, the order passed in the writ petition has to be exclusively regarded as one under article 227 of the Constitution and no other concept is invited. It is his further submission that in the decision rendered in the case of Ram K. Co. ( 2007 (3) MPHT 325 ) (supra)there has been apposite analysis of the terminology 'in exercise of original jurisdiction' and, therefore, the said decision should be given the stamp of approval and concurred with by the larger bench. ( 5 ) TO appreciate the rivalised submissions raised at the Bar. ( 2007 (3) MPHT 325 ) (supra)there has been apposite analysis of the terminology 'in exercise of original jurisdiction' and, therefore, the said decision should be given the stamp of approval and concurred with by the larger bench. ( 5 ) TO appreciate the rivalised submissions raised at the Bar. it is apposite to reproduce Section 2 of the Act dealing with an appeal: "2. Appeal to the Division Bench of the high Court from a Judgment or order of one judge of the High Court made in exercise of original Jurisdiction- (1) An appeal shall lie from a Judgment or order passed by one judge of the High Court in exercise of original jurisdiction under Article 226 of the constitution of India to a Division Bench comprising of two Judges of the same High Court: provided that no such appeal shall lie against an interlocutory order or against an order passed in exercise of supervisory jurisdiction under Article 227 of the Constitution of India. (2) An appeal under sub-section (1) shall be filed within 45 days from the date of order passed by a single Judge : provided that any appeal may be admitted after the prescribed period of 45 days if the petitioner satisfies the Division Bench that he had sufficient cause of not preferring the appeal within such period. Explanation.- The fact that the petitioner was misled by any order, practice or Judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this sub-section. (3) An appeal under sub-section (1) shall be filed, heard and decided in accordance with the procedure as may be prescribed by the High Court. " ( 6 ) IN M/s. Rama and Company ( 2007 (3)MPHT 325 ) (supra) the Division Bench has held as under : "22. Learned counsel for the appellant has also cited two judgments of the Division bench of this Court, which were delivered after coming into force of Adhiniyam, 2005 and in which the Division Bench has held that an appeal shall lie against the judgment passed by the learned single Judge against the order passed by the Tribunal. Learned counsel for the appellant has also cited two judgments of the Division bench of this Court, which were delivered after coming into force of Adhiniyam, 2005 and in which the Division Bench has held that an appeal shall lie against the judgment passed by the learned single Judge against the order passed by the Tribunal. These two judgments cited by learned counsel for the appellant are in the case of State of M. P. v. M. S. Wakankar, 2007 (1) MPLJ 99 and in the case of Smt. Shiva Dubey (Jhira) v. Sumit ranjan Dubey ( 2006 (4) MPHT 420 ) W. A. No. 310/2006 decided on 14-8-2006. 23. After perusing both these judgments, we find in both cases that Division Bench has held that an appeal shall lie against the order passed by the learned single Judge against the order passed by the Tribunal, but while deciding these cases language of section 2 of the Adhiniyam was not brought to the notice of the Division Bench that appeal shall lie only against the order passed by the learned single Judge in exercise of original jurisdiction. 24. The argument raised by learned counsel for the appellant that appeal is maintainable against every order passed by the learned single Judge in exercise of powers under Article 226 of the Constitution of India is not supported by the language of Section 2 of the Adhiniyam, because of the said interpretation is made, the exercise of original jurisdiction will become redundant. The legislature by use of the words "in exercise of its original jurisdiction" has made its intention clear that an appeal shall lie only if the learned single Judge has exercised its original jurisdiction. The words "in exercise of its original jurisdiction" qualifies for the words "article 226 of the Constitution of India". 25. Thus, it is clear that even though an appeal against an order passed by the learned single Judge in exercise of jurisdiction under Article 226 will lie only if the learned single Judge has exercised power as an original jurisdiction and not under supervisory jurisdiction. The supervisory jurisdiction of the High Court cannot be equated with original jurisdiction. 25. Thus, it is clear that even though an appeal against an order passed by the learned single Judge in exercise of jurisdiction under Article 226 will lie only if the learned single Judge has exercised power as an original jurisdiction and not under supervisory jurisdiction. The supervisory jurisdiction of the High Court cannot be equated with original jurisdiction. In such circumstances, even if the learned single judge has exercised its jurisdiction under article 226 of the Constitution of India and issued a writ of certiorari against an order passed by any Tribunal or a Court, then an appeal will not lie. 26. In the case at hand the State Government has filed a writ petition under Article 226/227 of the Constitution of India praying for a writ of certiorari against the order passed by the Board of revenue, which is a final Court of fact and thus has invoked the supervisory jurisdiction of the High Court, which is akin to appellate revisional or corrective jurisdiction that means not original jurisdiction. Hence, above mentioned appeals are not maintainable. " ( 7 ) THUS, from the aforesaid ratiocination it is perceptible that the Division Bench has understood that the phraseology "in exercise of original jurisdiction" has inseparable nexus with Article 226 of the Constitution of India. It is evincible that if the learned single Judge has passed an order in exercise of jurisdiction under Article 226 of the Constitution of India, such power has been exercised by way of an original jurisdiction and then only an appeal would lie. It is further manifest that the Division Bench has expressed the view that the supervisory jurisdiction of the High Court cannot be equated with the original jurisdiction and even if the learned single Judge has exercised the jurisdiction under Article 226 of the Constitution of India and issued a writ of certiorari against the order of any tribunal or Court, then an appeal would not lie. ( 8 ) IN Hari Vishnu Kamath v. Ahmad ishaque, AIR 1955 SC 233 the Apex Court has held that the High Court while issuing a writ of certiorari under Article 226 of the constitution of India can only annul a decision of a tribunal whereas under Article 227 it can issue further directions as well. ( 9 ) IN Umaji Keshao Meshram v. Smt. Radhikabai, AI. ( 9 ) IN Umaji Keshao Meshram v. Smt. Radhikabai, AI. 1986 SC 1272 the Apex court has ruled thus : "106. . . . . . In our opinion, where the facts justify a party in filing an application either under Article 226 or 227 of the Constitution, and the party chooses to file his application under both these Articles in fairness and justice to such party and in order not to deprive him of the valuable right of appeal the Court ought to treat the application as being made under Article 226, and if in deciding the matter, in the final order the court gives ancillary directions which may pertain to Article 227, this ought not to be held to deprive a 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. Such was the view taken by the Allahabad high Court in Aidal Singh v. Karan Singh, air 1957 All 414 (FB) and by the Punjab high Court in Raj Kishan Jain v. Tulsi Dass, air 1959 Punj 291 and Barham Dutt v. Peoples' Co-operative Transport Society Ltd. , new Delhi, AIR 1961 Punj 24 and we are in agreement with it. " ( 10 ) IN Sushilabai Laxminarayan mudliayar v. Nihalchand Waghajibhai shaha, 1993 Suppl (1) SCC 11 : AIR 1972 sc 185, the Apex Court referred to an unreported judgment passed in Ratnagiri District Central Co-operative Bank Ltd. v. Dinkar Kashinath Watve (C. A. No. 520 of 1989 decided on 27-1-1989) wherein it has been held as under : "even when in the cause title of an application both Article 226 and Article 227 of the Constitution have been mentioned, the learned single Judge is at liberty to decide according to facts of each particular case, whether the said application ought to be dealt with only under Article 226 of the constitution. For determining the question of maintainablity of an appeal against such a judgment of the single Judge the Divi on bench has to find out whether in substance the judgment has been passed by the learned single Judge in exercise of the jurisdiction under article 226 of the Constitution. For determining the question of maintainablity of an appeal against such a judgment of the single Judge the Divi on bench has to find out whether in substance the judgment has been passed by the learned single Judge in exercise of the jurisdiction under article 226 of the Constitution. In the event in passing his judgment on an application which had mentioned in its cause title both Articles 226 and 227, the single Judge has in fact invoked only his supervisory powers under Article 227, the appeal under clause 15 would not lie. The clause 15 of the Letters Patent expressly bars appeals against orders of single Judges passed under revisional or supervisory powers. Even when the learned single Judge's order has been passed under both the articles, for deciding the maintainability against such an order what would be relevant is the principal or main relief granted by the judgment passed by learned single judge and not the ancillary directions given by him. The expression 'ancillary' means, in the context, incidental or consequential to the main part of the order. Thus, the determining factor is the real nature of the principal order passed by the single Judge which is appealed against and neiither the mentioning in the cause title of the application of both the articles nor the granting of ancillary orders thereupon made by learned single Judge would be relevant. Thus, in each case, the Division Bench may consider the substance of the judgment under appeal to ascertain whether the single judge has mainly or principally exercised in the mater his jurisdiction under Article 226 or under Article 227. In the event in his judgment the learned single Judge himself had mentioned the particular article of the constitution under which he was passing his judgment, in an appeal under clause 15 against such a judgment it may not be necessary for the Appellate Bench to elaborately examine the question of its maintainability. When without mentioning the particular article the learned single Judge decided on merits the application, in order to decide the question of maintainability of an appeal against such a judgment, the Division Bench might examine the relief granted by the learned single Judge, for maintainability of an appeal, the determination would be the main and not the ancillary relief. When without mentioning the particular article the learned single Judge decided on merits the application, in order to decide the question of maintainability of an appeal against such a judgment, the Division Bench might examine the relief granted by the learned single Judge, for maintainability of an appeal, the determination would be the main and not the ancillary relief. When a combined application under Articles 226 and 227 of the Constitution is summarily dismissed without reasons, the appeal Court may consider whether the facts alleged warranted filing of the application under Article 226 or under Article 227 of the Constitution. " ( 11 ) THEREAFTER their Lordships explained the ratio laid down in the case of Umaji (supra) ( AIR 1986 SC 1272 ) and expressed thus: ". . . . . . . . . . In Umaji case it was clearly held that where the facts justify a party in filing an application either under Article 226 or 227 of the Constitution of India and the party chooses to file his application under both these articles in fairness of justice to party and in order not to deprive him of valuable right of appeal the Court ought to treat the application as being made under Article 226, and if in deciding the matter, in the final order the Court gives ancillary directions which may pertain to Article 227, this ought not to be held to deprive a 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. Rule 18 of the Bombay high Court Appellate Side Rules read with clause 15 of the Letters Patent provides for appeal to the Division Bench of the High court from a judgment of the learned single judge passed on a writ petition under Article 226 of the Constitution. In the present case the Division Bench was clearly wrong in holding that the appeal was not maintainable against the order of the learned single Judge. " ( 12 ) IN Mangalbhai v. Dr. Radhyshyam, air 1993 SC 806 a two Judge-Bench of the apex Court after reproducing certain paragraphs from Umaji Keshao Meshram (supra) ( AIR 1986 SC 1272 ) proceeded to state as under : "6. " ( 12 ) IN Mangalbhai v. Dr. Radhyshyam, air 1993 SC 806 a two Judge-Bench of the apex Court after reproducing certain paragraphs from Umaji Keshao Meshram (supra) ( AIR 1986 SC 1272 ) proceeded to state as under : "6. The learned single Judge in his impugned judgment dated 11-12-1987 nowhere mentioned that he was exercising the powers under Art. 227 of the Constitution. The learned single Judge examining the matter on merit and set aside the orders of the Rent Controller as well as the Resident deputy Collector on the ground that the aforesaid judgments were perverse. The findings of the Rent Controller and Resident deputy Collector were set aside on the question of habitual defaulter as well as on the ground of bona fide need. Thus in the totality of the facts and circumstances of the case, the pleadings of the parties in the writ petition and the Judgment of the learned single Judge leaves no manner of doubt that it was an order passed under Art. 226 of the constitution and in that view of the matter the Letters Patent Appeal was maintainable before the High Court. . . . . . . . " ( 13 ) IN Lokmat Newspapers Pvt. Ltd. v. Shankarprasad, (1999)6 SCC 275 : ( AIR 1999 SC 2423 ), the Apex Court took note of the fact situation where an order passed by the Labour Court under Section 28 of the maharashtra (Recognition of Trade Unions and Prevention of Unfair Labour Practices)Act, 1971 was confirmed by the Industrial tribunal under Section 44 of the said enactment. Both the Courts held that retrenchment of the respondent did not amount to any 'unfair labour practice' on the part of the appellant. The said orders were challenged by the respodnent by filing a writ petition under Articles 226 and 227 of the constitution of India before the High Court of Judicature at Bombay, Nagpur Bench and the learned single Judge dismissed the writ petition. Their Lordships took note of the fact that the order passed by the learned single Judge showed that he was considering the writ petition of the respondents which was moved before him invoking jurisdiction under Articles 226 and 227 of the constitution of India and thereafter their lordships adverted to the averments made in the writ petition and eventually came to express the view as under : "16. It is, therefore, obvious that the writ petition invoking jurisdiction of the High court both under Articles 226 and 227 of the Constitution had tried to make out a case for the High Court's interference seeking issuance of an appropriate writ of certiorari under Article 226 of the Constitution of India. Basic averments for invoking such a jurisdiction were already pleaded in the writ petition for the High Court's consideration. It is true, as submitted by learned counsel for the appellant, that the order of the learned single Judge nowhere stated that the Court was considering the writ petition under Article 226 of the Constitution of India. It is equally true that the learned single judge dismissed the writ petition by observing that the Courts below had appreciated the contentions and rejected the complaint. But the said observation of the learned single judge did not necessarily mean that the learned Judge was not inclined to interfere under Article 227 of the Constitution of India only. The said observation equally supports the conclusion that the learned Judge was not inclined to interfere under Articles 226 and 227. As seen earlier, he was considering the aforesaid writ petition moved under Article 226 as well as Article 227 of the Constitution of India. Under these circumstances, it is not possible to agree with the contention of learned counsel for the appellant that the learned single Judge had refused to interfere only under Article 227 of the Constitution of India when he dismissed the writ petition of the respondent. . . . . " ( 14 ) IN the case of Surya Dev Rai v. Ram chander Rai, AIR 2003 SC 3044 a two Judge bench of the Apex Court after referring to the established principles relating to the constitutional jurisdiction conferred on the High court under Articles 226 and 227 of the constitution of India and after referring to the basic spectrum inhered in writ of certiorari and further referring to the decisions rendered in Custodian of Evacuee Property, bangalore v. Khan Saheb Abdul Shukoor etc. (1961) 3 SCR 855 : ( AIR 1961 SC 1087 ), nagendra Nath Bora v. Commissioner of hills Division and Appeals. AIR 1958 SC 398 , T. C. Basappa v. T. Nagappa, AIR 1954 sc 440 and Rupa Ashok Hurra v. Ashok hurra, AIR 2002 SC 1771 expressed the opinion in paragraph 19 as under:- "19. (1961) 3 SCR 855 : ( AIR 1961 SC 1087 ), nagendra Nath Bora v. Commissioner of hills Division and Appeals. AIR 1958 SC 398 , T. C. Basappa v. T. Nagappa, AIR 1954 sc 440 and Rupa Ashok Hurra v. Ashok hurra, AIR 2002 SC 1771 expressed the opinion in paragraph 19 as under:- "19. Thus, there is no manner of doubt that the orders and proceedings of a judicial Court subordinate to High Court are amenable to writ jurisdiction of High Court under Art. 226 of the Constitution. " ( 15 ) THEREAFTER, their Lordships dwelled upon the supervisory jurisdiction under Article 227 of the Constitution of India and the difference between the writ of certiorari under Article 226 and supervisory jurisdiction udner Article 227 and opined as under :- "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 6f 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 labeling 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 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. Secondly, 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. Secondly, 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. Lastly, 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. " ( 16 ) IN Kishorilal v. Sales Officer, District land Development Bank, (2006) 7 SCC 496 : (2006 AIR SCW 6126) the Apex Court was dealing with an order whereby the learned single Judge had reversed the finding of the board of Revenue. An LPA was preferred and the Division Bench dismissed the same holding that it was not maintainable on the premises that the learned single Judge had exercised the jurisdiction under Article 227 of the Constitution of India. Their Lordships while dealing with the maintainability of the appeal before the Division Bench expressed thus : "13. The learned single Judge of the High court, in our opinion committed an error in interfering with the findings of fact arrived at by the Board of Revenue. The Division bench of the High Court also wrongly dismissed the LPA without noticing that an appeal would be maintainable if the writ petition was filed under Articles 226 and 227 of the Constitution of India as was held by this Court in Sushilabai Laxminarayan mudliyar v. Nihalchand Waghajibhai Shaha. The Division bench of the High Court also wrongly dismissed the LPA without noticing that an appeal would be maintainable if the writ petition was filed under Articles 226 and 227 of the Constitution of India as was held by this Court in Sushilabai Laxminarayan mudliyar v. Nihalchand Waghajibhai Shaha. " ( 17 ) FROM the aforesaid enunciation of law it is quite vivid and luminescent that the pleadings in the writ petition, nature of the order passed by the learned single judge, character and the contour of the order, directions issued, nomenclature given, the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. Phraseology used in exercise of original jurisdiction under Article 226 of the Constitution in Section 2 of the Act cannot be given a restricted and constructed meaning because an order passed in a writ petition can tantamount to an order under Articles 226 and 227 of the Constitution of India and it would depend upon the real nature of the order passed by the learned single Judge. To elaborate : Whether the learned single judge has exercised his jurisdiction under article 226 or under Article 227 or both would depend upon various aspects and many a facet as has been emphasized in the aforequoted decisions of the Apex Court. The pleadings, as has been indicated herein-above, also assume immense significance. As has been held in the case of Surya Dev rai (supra) ( AIR 2003 SC 3044 ) a writ of certiorari can be issued under Article 226 of the Constitution against an order of a tribunal or an order passed by the subordinate Court. In quintessentiality, it cannot be put in a straitjacket formula that any order of the learned single Judge that deals with an order arising from an inferior tribunal or the subordinate court is an order under Article 227 of the Constitution of India and not an order under Article 226 of the constittion. In quintessentiality, it cannot be put in a straitjacket formula that any order of the learned single Judge that deals with an order arising from an inferior tribunal or the subordinate court is an order under Article 227 of the Constitution of India and not an order under Article 226 of the constittion. It would not be an overemphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can coinside, co-exit, overlap or imbricate. In this context it is apt to note that there may be cases where the learned single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of the case. ( 18 ) IN view of our aforesaid analysis we are disposed to hold that the law laid down in the cases of Lakhan Lal Sonkar (supra), m/s. Wakankar (supra) and Smt. Shiva dubey (Jheera) (supra) lay down the law correctly being in consonance and accord of the decisions of the Apex Court and the decision rendered in M/s. Ram and Co. (supra) does not lay down the law soundly and accordingly the same is hereby overruled. ( 19 ) LET the matter be listed before the appropriate Division Bench. Order accordingly. .