TaxTMI 
TaxTMI 
TaxTMI 
2015 (9) TMI 1338
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....darsh Kumar Goel, JJ. For the Appellant : Mr. Dayan Krishnan, Sr. Adv., Mr. Kirtiman Singh, Adv., Mr. Gautam Narayan, AOR, Ms. Asmita Singh, Adv., Mr. Nachiketa Joshi,Adv., Mr. Sudhakar Joshi, Adv., Mr. Chaitanya Joshi, Adv., Mr. Bhushan M. Oza, Adv., Mr. O. P. Bhadani,Adv., Mr. Ashok Anand, Adv., Mr. Rakesh Kumar Singh,, Mr. Sanjay Kapur,Adv., Mr. D.G. Chauhan, Adv., Mr. Anmol Chandan, Adv., Ms. Priyanka Das, Adv., Ms. Daisy Hannah, Adv., Mr. Jatin Zaveri, Adv., Mr. Mohit D. Ram, Adv., Ms. Manisha T. Karia, Adv., Mr. Purvish Jitendra Malkan, Adv., Mr. Percy Kavina, Sr. Adv., Mr. Sunil Fernandes, Adv., Ms. Astha Sharma, Adv., Mr. Raghav Chadha, Adv., Ms. Mithu Jain, Adv., Mr. Preetesh Kapur, Adv., Ms. Hemantika Wahi, AOR, Ms. Jesal, Adv., Ms. Preeti Bhardwaj, Adv., For the Respondent: Mr. Gaurav Goel,Adv., Mr. Sanjoy Ghose, Adv., Mr. Kaustubh Anshuraj,Adv., Mr. Abhijeet Sinha,Adv., Mr. J. Prabhakar, Adv., Mr. Vikash Singh,Adv., Mr. Yogen N. Pandya, Adv., Mr. Padhyaru, Adv., Mr. Rameshwar Prasad Goyal,Adv., JUDGEMENT Dipak Misra, J. In this batch of appeals, by special leave, the appellants call in question the legal substantiality of the judgment and order dated 26.12.2013....
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....onstitution of India, the tribunal/Court whose order is impugned in a petition must be a party to the petition so that the writ sought from the Court can be issued against the tribunal/Court, but if the petition is for the relief under Article 227 only, then the tribunal/Court whose order is under assail need not be a party-respondent on the reasoning that by entertaining a petition under Article 227 of the Constitution, the High Court exercises its power of superintendence which is analogous to the revisional jurisdiction. 4. The special bench as is evincible from the judgment impugned, has delved into the questions framed by it, if we permit ourselves to say so, at great length and recorded its conclusions in seriatum. It is necessary to reproduce the relevant conclusions, which are as follows:- "(iii) When a writ is issued under Article 226 of the Constitution, it is issued in exercise of its original jurisdiction whether against the Tribunal or inferior Court or administrative authority. (iv) The power exercised under Article 226 of the Constitution is in exercise of original jurisdiction and not supervisory jurisdiction. xxx xxx xxx (vii) A writ of certiorari lies i....
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....sential conditions for issue of writ of certiorari are absent, no appeal will be maintainable against such order in view of the specific bar created under Clause 15 of the Letters Patent itself and such an order can be challenged only by way of a Special Leave Petition before the Supreme Court. To put it very explicitly, take a case where a petition is only under Article 227 of the Constitution of India, invoking superintending powers of the High Court and not under Article 226 of the Constitution of India. After examining the matter, if the court finds substance in the petition and sets aside the order of an authority, court or a tribunal, then against such an order, an LPA would not lie on the argument that since the court has set aside the order it has decided the matter on merits having found substance in the same. To put it in other words, once a petition is under Article 227 of the Constitution of India, and while entertaining such a petition under Article 227 of the Constitution of India, if the court allows a petition by setting aside the order impugned, then against such an order no LPA would lie. xii) If a learned Single Judge, in exercise of a purported power under Art....
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....e object, then, under such circumstances an order which is not revisable under Section 115 of the Code of Civil Procedure cannot be challenged by way of filing a Writ Petition under Article 226 of the Constitution invoking extraordinary jurisdiction of the High Court and that too an interlocutory order passed by the Civil Court in a Regular Suit proceedings." 5. At this juncture, we are obligated to state that the conclusions have been recorded by the High Court to cover all kinds of possibilities, but we are of the considered opinion that it may not always be possible to do so and hence, advertence in detail to the said conclusions is neither necessitous nor warranted. 6. Having said that, presently we shall proceed to deal with the first question we have stated hereinbefore. In this regard, reference to the authority in T.C. Basappa v. T. Nagappa and Another AIR 1954 SC 440 would be fruitful. The controversy before the Constitution Bench, apart from other aspects, also pertained to scope of jurisdiction under Article 226 of the Constitution. Dealing with the said facet, the larger Bench opined that:- "7. One of the fundamental principles in regard to the issuing of a writ of ....
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....er of the proceeding or from the absence of some preliminary proceeding or the court itself may not be legally constituted or suffer from certain disability by reason of extraneous circumstances, vide 'Halsbury, 2nd edition, Vol. IX, page 880. When the jurisdiction of the court depends upon the existence of some collateral fact, it is well settled that the court cannot by a wrong decision of the fact give it jurisdiction which it would not otherwise possess, vide Bunbury v. Fuller(1854) 9 EX 111 (F) & R. v. Income Tax Special Purposes Commissioners'(1889) 21 QBD 313 (G) xxx xxx xxx 11. In dealing with the powers of the High Court under Article 226 of the Constitution, this Court has expressed itself in almost similar terms, vide 'Veerappa Pillai v. Raman and Raman Ltd. AIR 1952 SC 192 at pp. 195-196 (I) and said: "Such writs as are referred to in Article 226 are obviously intended to enable the High Court to issue them in grave cases where the subordinate tribunals or bodies or officers act wholly without jurisdiction, or in excess of it, or in violation of the principles of natural justice, or refuse to exercise a jurisdiction vested in them, or there is an error apparent on t....
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....227." 8. In Nagender Nath Bora v. The Commissioner of Hills Division and Appeals, Assam and others AIR 1958 SC 398 , while dealing with the scope of Articles 226 and 227 of the Constitution, the Constitution Bench referred to the authority in Waryam Singh (supra) and held that:- "It is, thus, clear that the powers of judicial interference under Article 227 of the Constitution with orders of judicial or quasi-judicial nature, are not greater than the powers under Article 226 of the Constitution. Under Article 226, the power of interference may extend to quashing an impugned order on the ground of a mistake apparent on the face of the record. But under Article, 227 of the Constitution, the power of interference is limited to seeing that the tribunal functions within the limits of its authority. Hence, interference by the High Court, in these cases, either under Article 226 or 227 of the Constitution, was not justified." 9. In this context, we may usefully refer to another Constitution Bench decision in State of Uttar Pradesh and others v. Dr. Vijay Anand Maharaj AIR 1963 SC 946, wherein it has been ruled:- "9. Article 226 confers a power on a High Court to issue the writs, o....
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.... the parties brought before the court and nothing more. If this basic and essential aspect of the judicial process is borne in mind, it would be plain that the judicial verdict pronounced by court in or in relation to a matter brought before it for its decision cannot be said to affect the fundamental rights of citizens under Article 19(1)." After so stating, the learned Chief Justice observed thus:- "39. ..... Just as an order passed by the court on the merits of the dispute before it can be challenged only in appeal and cannot be said to contravene the fundamental rights of the litigants before the Court, so could the impugned order be challenged in appeal under Article 136 of the Constitution, but it cannot be said to affect the fundamental rights of the petitioners. The character of the judicial order remains the same whether it is passed in a matter directly in issue between the parties, or is passed incidentally to make the adjudication of the dispute between the parties fair and effective. On this view of the matter, it seems to us that the whole attack against the impugned order based on the assumption that it infringes the petitioners' fundamental rights under ....
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.... Bench, as there was a reference by a Division Bench expressing its doubt about the ratio laid down in Surya Dev Rai v. Ram Chander Rai and others (2003) 6 SCC 675 that judicial orders passed by the Civil Court can be examined and then corrected/reversed by the writ court under Article 226 in exercise of its power under writ of certiorari, speaking through one of us (Adarsh Kumar Goel, J.), referred to number of judgments including some of the decisions we have cited hereinabove and reproduced the opinion expressed in Sadhana Lodh v. National Insurance Co. Ltd. (2003) 3 SCC 524, which is to the following effect:- "6. The right of appeal is a statutory right and where the law provides remedy by filing an appeal on limited grounds, the grounds of challenge cannot be enlarged by filing a petition under Articles 226/227 of the Constitution on the premise that the insurer has limited grounds available for challenging the award given by the Tribunal. Section 149(2) of the Act limits the insurer to file an appeal on those enumerated grounds and the appeal being a product of the statute it is not open to an insurer to take any plea other than those provided under Section 149(2) of the Act....
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....er in paras 26 and 27 quoted above." After so stating, the Court proceeded to hold as follows:- "The Bench in Surya Dev Rai also observed in para 25 of its judgment that distinction between Articles 226 and 227 stood almost obliterated. In para 24 of the said judgment distinction in the two articles has been noted. In view thereof, observation that scope of Article 226 and 227 was obliterated was not correct as rightly observed by the referring Bench in Para 32 quoted above. We make it clear that though despite the curtailment of revisional jurisdiction under Section 115 CPC by Act 46 of 1999, jurisdiction of the High Court under Article 227 remains unaffected, it has been wrongly assumed in certain quarters that the said jurisdiction has been expanded. Scope of Article 227 has been explained in several decisions including Waryam Singh and another vs. Amarnath and another (supra), Ouseph Mathai vs. M. Abdul Khadir (2002) 1 SCC 319, Shalini Shyam Shetty vs. Rajendra Shankar Patil (2010) 8 SCC 329 and Sameer Suresh Gupta vs. Rahul Kumar Agarwal (2013) 9 SCC 374." The eventual conclusions read as follows:- "23. Thus, we are of the view that judicial orders of civil courts are not ....
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....Radhey Shyam (supra) has clearly stated that jurisdiction under Article 227 is distinct from jurisdiction under Article 226 of the Constitution and, therefore, a letters patent appeal or an intra-court appeal in respect of an order passed by the learned Single Judge dealing with an order arising out of a proceeding from a Civil Court would not lie before the Division Bench. Thus, the question next arises under what circumstances a letters patent appeal or an intra-court appeal would be maintainable before the Division Bench. 18. In Umaji Keshao Meshram and Others v. Radhikabai and Another 1986 (Supp) SCC 401, this Court has held thus:- "106. 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 under Articles 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 under Article 226 but precludes him from passing any final order on such application. It is because a Single Judge has no power....
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....e 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 : 1957 All LJ 388 (FB) and by the Punjab High Court in Raj Kishan Jain v. Tulsi Dass AIR 1959 Punj 291 and Barham Dutt v. Peoples' Cooperative Transport Society Ltd., New Delhi AIR 1961 Punj 24 : ILR (1961) 1 Punj 283 and we are in agreement with it." 19. Similar view was reiterated in Sushilabai Laxminarayan Mudliyar and others v. Nihalchand Waghajibhai Shaha and others 1993 Supp. (1) SCC 11, which arose from the High Court of Bombay. 20. In Mangalbhai and Others v. Radhyshyam (1992) 3 SCC 448 the dismissal o....
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....titution of India before the High Court. The Court adverted to the facts and also the order passed by the learned Single Judge and in that context ruled:- "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." Thereafter, the learned Judges referred to the authority in Umaji Keshao Meshram (supra) and ruled:- "The aforesaid decision squarely gets attracted on the facts of the present case. It was open to the respondent to invoke the jurisdiction of the High Court both under Articles 226 and 227 of the Constitution of India. 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 under Article 226 (sic 227) of the Constitution of India. This conclusion directly flows from the relevant averments made in the wri....
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....rned Single Judge dismissed the petition. Being grieved by the aforesaid order, a letters patent appeal was preferred under clause 15 of the Letters Patent. The Division Bench allowed the appeal and set aside the judgment and order passed by the learned Single Judge. A contention was raised before this Court pertaining to maintainability of letters patent appeal under clause 15 of the Letters Patent. R.M. Lodha, J. (as His Lordship then was) speaking for the Court, referred to the authorities in Umaji Keshao Meshram (supra), Ratnagiri Dist. Central Coop. Bank Ltd. v. Dinkar Kashinath Watve (1993) Supp (1) SCC 9, Ramesh Chandra Sankla v. Vikram Cement (2008) 14 SCC 58 and stated thus:- "36. If the judgment under appeal falls squarely within four corners of Article 227, it goes without saying that intra-court appeal from such judgment would not be maintainable. On the other hand, if the petitioner has 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. What is important to be ascertained is the true na....
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....sed the jurisdiction under Article 226 or under Article 227 or both, needless to emphasise, would depend upon various aspects that have been emphasised in the aforestated authorities of this Court. There can be orders passed by the learned Single Judge which can be construed as an order under both the articles in a composite manner, for they can co-exist, coincide and imbricate. We reiterate it would depend upon the nature, contour and character of the order 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 learned Single Judge in exercise of jurisdiction under Article 226 or 227 of the Constitution or both. The Division Bench would also be required to scrutinize whether the facts of the case justify the assertions made in the petition to invoke the jurisdiction under both the articles and the relief prayed on that foundation. Be it stated, one of the conclusions recorded by the High Court in the impugned judgment pertains to demand and payment of court fees. We do not intend to comment on the same as that would depend upon the rules framed by the High Court. 26. The next facet perta....
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....invites our attention to the form of the 'order nisi' in a writ of 'certiorari', and contends that as it requires the court or tribunal whose proceedings are to be reviewed, to transmit the records to the superior court, there is, if the tribunal has ceased to exist, none to whom the writ could be issued and none who could be compelled to produce the record. But then, if the writ is in reality directed against the record, there is no reason why it should not be issued to whosoever has the custody thereof. The following statement of the law in Ferris on the Law of Extraordinary Legal Remedies is apposite: "The writ is directed to the body or officer whose determination is to be reviewed, or to any other person having the custody of the record or other papers to be certified."" 28. In Ghaio Mal & Sons (supra), the Court found a specific fact was not brought on record and evasive replies were filed which were wholly unconvincing. In that context, the Constitution Bench, speaking through S.R. Das, C.J. observed:- "... It is needless to say that the adoption of such dubious devices is not calculated to produce a favourable impression on the mind of the court as to the good faith of t....
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....accordance with rules. As a result of the said proceedings, the appellant's licence stood cancelled and the Deputy Commissioner was directed to hold a fresh settlement giving preferential treatment to Phudan Manjhi. A writ petition was filed under Article 226 of the Constitution before the High Court for quashment of the said orders and before the writ court neither Phudan Manjhi nor Bhagwan Rajak in whose favour the Board of Revenue had decided was made a party. During the pendency of an appeal before this Court, the Deputy Commissioner had conducted an enquiry and come to the conclusion that Phudan Manjhi was not fit to be selected for grant of licence and he was waiting for making a fresh settlement. In course of hearing of the appeal, a preliminary objection was raised by the learned counsel for the respondent that as Phudan Manjhi and Bhagwan Rajak who were necessary parties to the writ petition were not made parties, the High Court was justified in dismissing the writ petition in limini. This Court accepted the preliminary objection holding that the law on the subject is well settled that a person who is a necessary party is one without whom no order can be made effectively a....
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....ntial 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 the 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 jurisdiction. If such a tribunal or authority is not made party to the writ, it can easily ignore the order of the High Court quashing its order, for, not being a party, it will not be liable to contempt. In these circumstances whoever else is a necessary party or not the authority or tribunal is certainly a necessary party to such a proceeding. In this case, the Board of Revenue and the Commissioner of Excise were rightly made parties in the writ petition." Thereafter, the Court proceeded to lay down thus:- "9. The next questio....
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....s. But it is in the discretion of the court to add or implead proper parties for completely settling all the questions that may be involved in the controversy either suo motu or on the application of a party to the writ or an application filed at the instance of such proper party." 30. The High Court, as we find, relied on the aforesaid decision to form the foundation that unless a Court or a tribunal is made a party, the proceeding is not maintainable. What has been stated in Hari Vishnu Kamath (supra), which we have reproduced hereinbefore is that where plain question on issuing directions arises, it is conceivable that there should be in existence a person or authority to whom such directions could be issued. The suggestion that non-existence of a tribunal might operate as a bar to issue such directions is not correct as the true scope of certiorari is that it merely demolishes the offending order and hence, the presence of the offender before the Court, though proper is not necessary for the exercise of the jurisdiction or to render its determination effective. 31. In Udit Narain Singh (supra), the fulcrum of the controversy was non-impleadment of the persons in whose favour ....
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....pra) has opined thus:- "In our opinion, the observations of the Supreme Court pertained to the judicial officers being made parties in the proceedings as against a person, authority or a State being made a party in a petition under Article 226 and a Court or a Tribunal not being so required in a petition under Article 227 of the Constitution of India." After so stating, the High Court has proceeded to express the view that it is not a binding precedent and thereafter opined:- "We are of the opinion that although in Hari Vishnu Kamath (supra), the Supreme Court may have observed that the presence of the Tribunal would be proper yet may not be necessary for the exercise of the jurisdiction or to render its determination effective, but the said principle has been more elaborately explained and made clear by the Supreme Court in Udit Narain (supra) laying down as an absolute proposition of law that no writ could be issued under Article 226 of the Constitution without the Tribunal, whose order is sought to be impugned, is made a party respondent." 34. As we notice, the decisions rendered in Hari Vishnu Kamath (supra), Udit Narain Singh (supra) and Savitri Devi (supra) have to be pro....
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....ents, the District Judges function as Election Tribunals from whose orders a revision or a writ may lie depending upon the provisions in the Act. In such a situation, the superior court, that is the High Court, even if required to call for the records, the District Judge need not be a party. Thus, in essence, when a tribunal or authority is required to defend its own order, it is to be made a party failing which the proceeding before the High Court would be regarded as not maintainable. 35. We have stated in the beginning that three issues arise despite the High Court framing number of issues and answering it at various levels. It is to be borne in mind how the jurisdiction under the letters patent appeal is to be exercised cannot exhaustively be stated. It will depend upon the Bench adjudicating the lis how it understands and appreciates the order passed by the learned Single Judge. There cannot be a straight-jacket formula for the same. Needless to say, the High Court while exercising jurisdiction under Article 227 of the Constitution has to be guided by the parameters laid down by this Court and some of the judgments that have been referred to in Radhey Shyam (supra). 36. In v....