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The High Court did not consider the nature of the controversy and the prayer involved in the Writ petition Ratio |
As noted above the prayer was to quash the order of assessment passed by the Assistant Commissioner,Commercial Tax levying purchase as well as Entry Tax Ratio |
S.2 of the Act reads as follows: "2(1 STA |
An appeal shall lie from a judgment or order passed by the one Judge of the High Court in exercise of original jurisdiction u/art.226 of the Constitution of India,to a Division bench comprising of two judges of the same High Court STA |
Provided that no such appeal shall lie against an interlocutory order or against an order passed in exercise of supervisory jurisdiction u/art.227 of the Constitution of India STA |
This Court in Hari Vishnu Kamath v PRE |
Syed Ahmad Ishaque and Ors.(AIR 1955 SC 233 1954 Indlaw SC 212) held that the High Court while issuing writ of certiorari u/art.226 of the Constitution can only annul a decision of a Tribunal whereas u/art.227 of the Constitution it can issue further directions as well PRE |
As noted above the prayer in the Writ Petition was to set aside the decision of the assessing officer FAC |
In Umaji Keshao Meshram v PRE |
Radhikabai [AIR 1986 SC 1272 1986 Indlaw SC 651 PRE |
it was noted as follows PRE |
U/art.226 an order,direction or writ is to issue to a person,authority or the State PRE |
In a proceeding under that article the person,authority or State against whom the direction,order or writ is sought is a necessary party PRE |
Under Article 227,however,what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority and according to law PRE |
Prior to the commencement of the Constitution,the Chartered High Courts as also the Judicial Committee had held that the power to issue prerogative writs possessed by the Chartered High Courts was an exercise of original jurisdiction (see Mahomedalli Allabux v PRE |
Ismailji Abdulali (AIR 1926 PRE |
Bom 332 1926 Indlaw MUM 144),Raghunath Keshav Khadilkar v PRE |
Poona Municipality,(AIR PRE |
1945 Bom 7 1943 Indlaw MUM 140) Ryots of Garabandho v PRE |
Zemindar of Parlakimedi (AIR 1943 PC 164 1943 Indlaw PC 23) and Moulvi Hamid Hasan Nomani PRE |
v PRE |
Banwarilal Roy 1947 Indlaw PC 15 [(1946-47) 74 Ind App 120,130-131].In the last mentioned case which dealt with the nature of a writ of quo warranto PRE |
the Judicial Committee held: "In Their Lordships' opinion any original civil jurisdiction possessed by the High Court and not in express terms conferred by the Letters Patent or later enactments falls within the description of ordinary original civil jurisdiction PRE |
By Art.226 the power of issuing prerogative writs possessed by the Chartered High Courts prior to the commencement of the Constitution has been made wider and more extensive and conferred upon every High Court Ratio |
The nature of the exercise of the power under Article 226,however,remains the same as in the case of the power of issuing prerogative writs possessed by the Chartered High Courts Ratio |
A series of decisions of this Court has firmly established that a proceeding u/art.226 is an original proceeding and when it concerns civil rights,it is an original civil proceeding (see,for instance,State of U.P.v PRE |
Vijay Anand Maharaj PRE |
1963) 1 SCR 1 1962 Indlaw SC 340,16],CIT v PRE |
Ishwarlal Bhagwandas [AIR 1965 SC 1818 1965 Indlaw SC 158],Ramesh v PRE |
Seth Gendalal Motilal Patni (1966 (3) SCR 198 1966 Indlaw SC 395),Arbind Kumar Singh v PRE |
Nand Kishore Prasad[1968 (3) SCR 322 1968 Indlaw SC 223] and Ahmedabad Mfg.& Calico Ptg PRE |
Co PRE |
Ltd.v PRE |
Ram Tahel Ramnand (AIR 1972 SC 1598 1972 Indlaw SC 378 PRE |
It was noted as follows PRE |
The non obstante clause in Rule 18,namely,"Notwithstanding anything contained in Rules 1,4 and 17 of this chapter",makes it abundantly clear why that rule uses the words "finally disposed of".As seen above,under Rules 1 and 17,applications u/arts.226 and 227 are required to be heard and disposed of by a Division Bench ... |
Rule 4,however,gives power to a Single Judge to issue rule nisi on an application u/art.226 PRE |
but precludes him from passing any final order on such application PRE |
It is because a Single Judge has no power under Rules 1,4 and 17 to hear and dispose of a petition u PRE |
art.226 or 227 that the non obstante clause has been introduced in Rule 18.The use of the words "be heard and finally disposed of by a Single Judge" in Rule 18 merely clarifies the position that in such cases the power of the Single Judge is not confined merely to issuing a rule nisi PRE |
These words were not intended to bar a right of appeal PRE |
To say that the words "finally disposed of" mean finally disposed of so far as the High Court is concerned is illogical because Rules 1,4 and 7 use the words "be heard and disposed of by a Divisional Bench" and were the reasoning of the Full Bench correct,it would mean that so far as the High Court is concerned,when a ... |
The right of appeal against the judgment of a Single Judge is given by the Letters Patent which have been continued in force by Art.225 of the Constitution PRE |
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 PRE |
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 PRE |
As we have seen above,an intra-court appeal against the judgment of a Single Judge in a petition u/art.226 is not barred while cl.15 itself bars an intra-court appeal against the judgment of a Single Judge in a petition u/art.227 PRE |
In Sushilabai Laxminarayan Mudliyar v PRE |
Nihalchand Waghajibhai Shaha [1993 Supp.(1) SCC 11 1991 Indlaw SC 718 PRE |
this court with reference to an unreported judgment in Ratnagiri District Central Co-operative Bank Ltd.v PRE |
Dinkar Kashinath Watve 1989 Indlaw SC 421,C.A.No.520 of 1989 decided on 27.1.1989 held as follows: "Even when in the cause title of an application both Art.226 and Art.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... |
For determining the question of maintainability of an appeal against such a judgment of the Single Judge the Division bench has to find out whether in substance the judgment has been passed by the learned Single Judge in exercise of the jurisdiction u/art.226 of the Constitution PRE |
In the event in passing his judgment on an application which had mentioned in its cause title both Arts.226 and 227,the Single Judge has in fact invoked only his supervisory powers under Article 227,the appeal under cl.15 would not lie PRE |
The cl.15 of the Letters Patent expressly bars appeals against orders of Single Judges passed under revisional or supervisory powers PRE |
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 PRE |
The expression 'ancillary' means,in the context,incidental or consequential to the main part of the order PRE |
Thus,the determining factor is the real nature of principal order passed by the Single Judge which is appealed against and neither 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 PRE |
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 matter his jurisdiction PRE |
u/art.226 or u/art.227.In PRE |
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 cl.15 against such a judgment it may not be necessary for the appellate bench to elaborately examine the question of its maintainability PRE |
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 determina... |
When a combined application u/arts.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 u/art.226 or u/art.227 of the Constitution PRE |
Thereafter this Court explained the ratio laid down in the case of Umaji's case1986 Indlaw SC 651 (supra) and expressed thus: "In Umaji case it was clearly held that where the facts justify a party in filing an application either u/art.226 or 227 of the Constitution of India and the party chooses to file his applicatio... |
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 PRE |
In Mangalbhai & Ors.v PRE |
Radhyshyam (Dr PRE |
AIR 1993 SC 806 1992 Indlaw SC 509] it was inter alia observed as follows: "The learned Single Judge in his impugned judgment dated December 11,1987 nowhere mentioned that he was exercising the powers u/art.227 of the Constitution PRE |
The learned Single Judge examined 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 PRE |
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 PRE |
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 u/art.226 of the Constitution and in that view of the matter the Letters Patent Appeal was maintainable bef... |
After taking the aforesaid view one course open was to set aside the order of the Division Bench and to remand the matter for being disposed of on merits by the Division Bench of the High Court PRE |
However,taking in view the fact that this litigation is going on for nearly a decade and also the fact that even the learned Single Judge in his impugned order dated December 11,1987 had remanded the case to the Rent Controller,we considered it proper in the interest of justice to hear the appeal on merits against the ... |
We have heard learned counsel for the parties at length on the merits of the case PRE |
In Lokmat Newspapers (P PRE |
Shankarprasad [1999 (6) SCC 275 1999 Indlaw SC 587 PRE |
it was observed as follows: "It is,therefore,obvious that the writ petition invoking jurisdiction of the High Court both u/arts.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 u/art.226 of the Constitution of India PRE |
Basic averments for invoking such a jurisdiction were already pleaded in the writ petition for the High Court's consideration PRE |
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 u/art.226 of the Constitution of India PRE |
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 PRE |
But the said observation of the learned Single Judge did not necessarily mean that the learned Judge was not inclined to interfere u/art.227 of the Constitution of India only PRE |
The said observation equally supports the conclusion that the learned Judge was not inclined to interfere u/arts.226 and 227.As seen earlier,he was considering the aforesaid writ petition moved u/art.226 as well as Art.227 of the Constitution of India PRE |
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 u/art.227 of the Constitution of India when he dismissed the writ petition of the respondent PRE |
In this connection,it is profitable to have a look at the decision of this Court in the case of Umaji Keshao Meshram v PRE |
Radhikabai [1986 Supp.SCC 401 1986 Indlaw SC 651].In PRE |
that case O.Chinnappa Reddy and D.P.Madon PRE |
JJ.,considered the very same question in the light of cl.15 of the Letters Patent of the Bombay High Court PRE |
Madon,J.,speaking for the Court made the following pertinent observations: "Petitions are at times filed both u/arts.226 and 227 of the Constitution PRE |
The case of Hari Vishnu Kamath v PRE |
Syed Ahmad Ishaque (AIR 1955 SC 233 1954 Indlaw SC 212) before this Court was of such a type PRE |
Rule 18 provides that where such petitions are filed against orders of the tribunals or authorities specified in Rule 18 of Chapter XVII of the Appellate Side Rules or against decrees or orders of courts specified in that rule,they shall be heard and finally disposed of by a Single Judge PRE |
The question is whether an appeal would lie from the decision of the Single Judge in such a case PRE |
In our opinion,where the facts justify a party in filing an application either u/art.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 a... |
art.226.Such was the view taken by the Allahabad High Court in Aidal Singh v PRE |
Karan Singh (AIR 1957 All 414 1956 Indlaw ALL 107) and by the Punjab High Court in Raj Kishan Jain v PRE |
Tulsi Dass (AIR 1959 Punj 291 1958 Indlaw PNH 109) and Barham Dutt v PRE |
Peoples' Coop PRE |
Transport Society Ltd.(AIR 1961 Punj 24 1960 Indlaw PNH 196) and we are in agreement with it PRE |
The aforesaid decision squarely gets attracted on the facts of the present case Ratio |
It was open to the respondent to invoke the jurisdiction of the High Court both u/arts.226 and 227 of the Constitution of India Ratio |
Once such a jurisdiction was invoked and when his writ petition was dismissed on merits,it cannot be said that the learned Single Judge had exercised his jurisdiction only u/art.226 of the Constitution of India Ratio |
This conclusion directly flows from the relevant averments made in the writ petition and the nature of jurisdiction invoked by the respondent as noted by the learned Single Judge in his judgment,as seen earlier Ratio |
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