TaxTMI 
TaxTMI 
2011 (1) TMI 1509
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....nts giving rise to the instant LPAs is as follows: 3. Mr. C. S. Aggarwal, director of M/S Rockman Projects Limited (referred to as "RPL"), made a representation, for the purpose of securing investment, to Mr. Sameer Kohli, director M/S Kohli Housing and Development Pvt. Ltd( in short KHPDL) that the RPL is intending to develop one SEZ on 250 acres land, which is owned by the RPL, situated on Delhi-Jaipur Highway at village Shidhrawali, Gurgaon, Haryana and for this project the petitioner has received in- principal approval dated 22.08.2006 from the Government of India. On the basis of this representation, after being got convinced by the petitioner that he has full authority, supported by the Board resolution dated 14.05.2007, to enter into commercial deals on behalf of RPL, respondent no. 3 agreed to buy 74% shares worth Rs. 185 crores in the Special purpose vehicle (SPL) formed for this purpose. Respondent No. 3 was told that when the final notification regarding SEZ will be received by the company, it will transfer the land to the SPV. In pursuant to this agreement, one MoU dated 18th June 2007 was signed and advance payment of Rs. 40 crores was made by the respondent no. 3 on ....
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....iled under article 226 of the Indian Constitution r/w section 482 Cr.P.C. challenged the registration of the aforesaid FIR and sought quashing of the same. However, Learned Single Judge of this High Court found no merit in that petition and dismissed the same vide order dated 11.11.2010 on the ground that the investigation done by the EOW clearly indicates that the petitioner had, from the very beginning, a dishonest intention to cheat the respondent no.3. Feeling aggrieved by the dismissal of his writ petition, the appellant Sh. C.S. Aggarwal has preferred the Letter Patent Appeal under clause 10 of the Letter Patent Act of the Punjab and Lahore High Court which is applicable to the Delhi High Court. Sh. D.K. Jain has also filed LPA raising the grievance that even when he was not a party to the writ proceedings, the learned Single Judge had made observations prejudicial to his interest at his back. 6. Before we could proceed with the matter in hand on merits, an objection as to the maintainability of these LPAs was raised by the respondent on the ground that the judgment of the learned Single Judge was passed in exercise of the criminal jurisdiction and an LPA against the same is....
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....Court of Delhi. 8. In addition to the appeals that can be filed under section 10 of the DHC Act, three more categories of appeals lie to this Court. Thus the following four categories constitute appellate jurisdiction of the Delhi High Court: a. Firstly, appeals under Section 10 of the DHC Act but they are limited only to those judgments referable to Section 5(2) thereof. b. Secondly, appeals under the Code of Civil Procedure. c. Thirdly, appeals under different statutes, which itself provides for an appeal. d. Fourthly, appeals under Clause 10 of the Letters Patent. 9. Here we are concerned only with the fourth category. Clause 10 of the Letters Patent, as applicable to the Delhi High Court read as follows: "10. Appeals to the High Court from Judges of the Court - And we do further ordain that an appeal shall lie to the said High Court of Judicature at Lahore from the judgment (not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the Superintendence of the said High Court, and not being an order made in the exercise of revisional jurisdiction, and not b....
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....administrative convenience only and this sub classification is not of constitutional origin. On the other hand, even if section 482 was mentioned in the writ, the power to quash a FIR, as per the decision of the Supreme Court in State of Karnataka & Anr. Vs. Pastor P. Raju [(2006) 6 SCC 728], can only be exercised under Art. 226 and not under section 482 Cr. P. C. It was further submitted that the exercise of power under Art. 226 by the High Court amounts to exercise of original jurisdiction as held by the Apex Court in Umaji Keshao Meshram and Ors Vs. Smt. Radhikabai and Anr.[AIR 1986 SC 1272]. Predicated on this, the submission is that the Single Judge, while delivering judgment in that writ, was exercising extra-ordinary original jurisdiction which is conferred upon this High Court by the Constitution of India and not the "criminal jurisdiction" which is barred in view of clause 10 and 18 of the Letter Patent Act of Punjab and Lahore High Court. 12. In order to buttress his submissions, the appellants have also placed reliance upon the judgment of the Full Bench of High Court of Andhra Pradesh in Gangaram Kandaram Vs Sunder Chhikha Amin and others [2000 (2) ALT 448]. The releva....
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....f the Punjab and Haryana High Court in Adishwar Jain Vs Union of India & others [2006 CriLJ 3193] whereby it was held that an appeal under the Letters Patent is maintainable against the judgment of a Single Judge in the petition praying for issuance of Habeas Corpus. 14. When confronted with the judgment of the division bench of Delhi High Court in the case of Ajay Fotedar Vs State of NCT of Delhi and Ors. [124(2005)DLT176], the appellant vehemently contended that this judgment is not only per incurium but the question of maintainability was also not raised before the bench and therefore the observations of the bench as contained in para 7 of the said judgment do not constitute the ratio of the case. Instead, reference is made to judgment of this Court in Harwinder Singh v. Union of India and Others, 55 (1994) Delhi Law Times 187 (DB) in support of the submission that LPA would be maintainable. 15. On the other hand, on the basis of aforesaid bar on the maintainability of LPA against a judgment or order passed in exercise of "criminal jurisdiction", the respondents have raised the preliminary objection. Learned counsel for the respondents have not only argued that Harwinder Singh....
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....jurisdiction within the meaning of Clause 15 of the Letters Patent. 14. Article 226 of the Constitution empowers every High Court to issue to any person of authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo wrranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part HI of the Constitution or for "any other purpose". It is settled by a catena of decisions of the Hon'ble Supreme Court as well as of this Court that the power under Article 226 of the Constitution is extraordinary and original in nature. Article 227 of the Constitution, on the other hand, enacts that every High Court shall have power of superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction. The power conferred under Article 227 is not original but supervisory and in exercise of that power, the High Court will supervise functioning of all courts and tribunals situate within its territorial jurisdiction. It is also well settled by several decisions of the Apex Court that the pow....
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....ns: In the present case, it cannot, in any way, be said that the petitioner had invoked the criminal jurisdiction under the provisions of the Code of Criminal Procedure of the High Court when he had, in fact, filed the Special Civil Application under Article 226 of the Constitution before the single Judge. 38. In our judgment, therefore, it cannot be said that in the above decision, this Court has laid down any rule of universal application regarding maintainability of Letters Patent Appeal against 'judgment' of a single Judge irrespective of the facts of the case. 39. The matter can be considered from a different angle also. It is well settled that availability of alternative remedy is no bar to exercise of extraordinary powers by a High Court under Article 226 of the Constitution. Even if, an alternative and efficacious remedy is available to the aggrieved party, he can approach a High Court by filing a petition. It also cannot be disputed that the High Court can entertain a petition and can grant appropriate relief to the applicant notwithstanding availability of other remedy. Availability of such remedy is but one of the considerations which the Court may take int....
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....Criminal Procedure will continue to remain "criminal proceeding" covered by the bracketed portion of Clause 15 of the Letters Patent. 83. As Clause 15 of the Letters Patent expressly bars an appeal against the order passed by a single Judge of the High Court in exercise of criminal jurisdiction, LPAs are not maintainable and deserve to be dismissed only on that ground. We accordingly hold that the Letters Patent Appeals are not maintainable at law and they are liable to be dismissed." 17. Without going into the detailed discussion on merits, we may point out at this stage that we are confronted with two judgments of this Court both rendered by the Division Benches. Learned counsel appearing for the appellant has placed reliance on the decision contained in Harwinder Singh (supra). That was a case where the appellant was detained under Conservation of Foreign Exchange and Prevention of Smuggling Act (COFEPOSA). He filed writ petition challenging the said detention order which was given nomenclature "Criminal Writ". This writ petition was dismissed by a learned Single Judge. Against the judgment of the learned Single Judge, LPA was preferred and maintainability whereof was questio....
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....ainability was debated. The Court held that LPA was not maintainable, as such proceedings would be in the nature of "criminal proceedings". However, it would be of interest to note that the Court dealt with the appeal on merits first and did not find any substance in the appeal. First six paras of the judgments are devoted to this aspect wherein the Division Bench concluded that no inference in the judgment of learned Single Judge was called for. However, before concluding, in para 7 the Court recorded:- "It is required to be noted that ordinarily when original jurisdiction of the High Court is invoked by filing a writ petition, a Letters Patent Appeal can be filed by when proceedings are initiated and when a specific provision is provide in the Cr.P.C., namely, Section 482, there is no question of entertaining Letters Patent Appeal." 20. It is clear from the above that petition filed under Article 226 of the Constitution read with Section 482 Code of Criminal Procedure (Cr.P.C.) for quashing of the FIR were treated as proceedings of "criminal nature". The appellants contended that the aforesaid observations are per incurium. 21. Thus, while counsel for both the sides are ad id....