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2017 DIGILAW 417 (JK)

Abdul Aziz v. Abdul Aziz

2017-07-24

ALOK ARADHE, SANJEEV KUMAR

body2017
JUDGMENT : Alok Aradhe, J. Caveat No.2033/2017: With the appearance of Mr. Rakesh Sharma, caveat shall stand discharged. LPAOW No.63/2017, MP No.01/2017: 1. Heard. In this intra court appeal, the appellants have assailed the validity of the order dated 18.05.2017 passed by Learned Single Judge in the writ petition. 2. When the matter was taken up today, learned counsel for the respondents at the outset raised an objection with regard to maintainability of the appeal on the ground that the same is not maintainable in view of law enunciated by the Division Bench of this Court in the case of Sansar Chand v. Som Dutt, 2015 (1) JKJ 219 [HC]. 3. It is further submitted that no Letters Patent Appeal lies against the order passed in exercise of powers under Section 104 of the Constitution of the State of Jammu and Kashmir. 4. We have considered the submissions made by learned counsel for the respondents. It is noteworthy that respondents were the petitioners before the Learned Single Judge. In view of the arguments raised by learned counsel for the respondents himself, it is evident that the writ petition was preferred by the respondents under Section 104 of the Constitution of State of Jammu and Kashmir as provisions of Article 227 of the Indian Constitution does not apply to the State of Jammu and Kashmir. For the facility of reference, Section 104 of the Constitution of the State of Jammu and Kashmir is reproduced below which reads as under: “104. Superintendence and control of subordinate courts- (1) The High Court shall have superintendence and control over all courts for the time being subject to its appellate or revisional jurisdiction and all such courts shall be subordinate to the High Court. (2) Without prejudice to the generality of the foregoing provision, the High Court may- (a) call for return from such courts; (b) make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts; (c) prescribe forms in which books, entries and accounts shall be kept by the officers of any such court. (2) Without prejudice to the generality of the foregoing provision, the High Court may- (a) call for return from such courts; (b) make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts; (c) prescribe forms in which books, entries and accounts shall be kept by the officers of any such court. (3) The High Court may also settle tables of fees to be allowed to the sheriff and all clerks and officers of such courts and to attorneys, advocates and pleaders practicing therein: Provided that any rules made, forms prescribed or tables settled under sub-section (2) or sub-section (3) shall not be inconsistent with the provision of any law for the time being in force, and shall require the previous approval of the Governor.” 5. From perusal of Section 104, it is evident that the supervisory jurisdiction of the High Court extends only to the Courts which are subordinate to the High Court. In the petition which was filed by the respondents before the Learned Single Judge, the respondents had challenged the order dated 28.02.2010 passed by the Jammu and Kashmir Special Tribunal at Jammu. Obviously, the power under Section 104 of the Constitution of the State of Jammu and Kashmir does not extend to the order passed by the Jammu and Kashmir Special Tribunal. In other words, writ petition filed by the respondents was not maintainable before the learned Single Judge. Accordingly, the order passed by the Learned Single Judge, in view of objection raised by the respondents themselves, is hereby quashed and set aside. In the result, the LPA is allowed.