Intra-Court Appeal Not Maintainable Against Order U/Art 227 Unless Exercise Of Original Jurisdiction Under Article 226 Is Involved: Gujarat HC

The Gujarat High Court has distinguished between the right of an 'intra-court appeal' under Article 226 and Article 227 of the Constitution and held that an intra-court appeal does not lie against the judgement of a Single Judge when the power of superintendence is exercised by examining the subordinate court's order.

In other words, Clause 15 of the Letters Patent Act, does not permit an appeal against the order passed by a Single Judge of the Court in an Art 227 petition.

Chief Justice Aravind Kumar and Justice Ashutosh Joshi stated:

"Where a petition is filed both under Article 226 and 227 of the Constitution of India, it will have to be considered whether the point raised in the petition arose for adjudication for the first time before the High Court. If the challenge in the petition is with respect to the points already adjudicated upon by the subordinate court or tribunal, then it will have to be held that the supervisory jurisdiction of the High Court was invoked and not the original jurisdiction."

"Mere mentioning of the provision of Article 226 and without there being any fundamental and foundation facts specified, which may indicate that original jurisdiction is invoked would not alter the position."

The instant intra-court appeal was filed under Articles 226 and 227 and were challenging the decision of the Single Judge Bench of the High Court in an SCA which had affirmed the order of the Additional District Judge in a Civil Suit. The suit pertained to the provisions of the Public Premises Act wherein the Petitioner had not commenced construction on the land allotted to him even after 6 years. Consequently, the Petitioner was required to vacate the wheat being stored in the land. The Estate Officer later commenced proceedings for the order of eviction as well.

Herein, the maintainability of the appeal was challenged by the Respondents on the ground that the order passed by the Civil Court had already been challenged before the Single Judge Bench under Article 227. Per contra, the Petitioner averred that the order of the Single Judge was not passed under Article 227 alone but also under Article 226.

Addressing this contention, the Bench explained that the order passed by the District Judge under the PP Act was in the capacity of the Appellate Court and therefore, the challenge before Single Judge would proceed under Art 227 only and not Art 226. Therefore, the LPA was not maintainable. Reliance was placed on Life Insurance Corporation of India Vs. Nandini J. Shah, case where the Apex Court had held:

"Whether the learned Single Judge has exercised 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."

Keeping in view these precedents, the High Court noted that at first the order was passed by the Estate Officer u/s 5(1) of the PP Act. Later, the appeal was preferred against the order u/s 9 of the Act. Referring to the LIC case, the High Court concluded that the 'Appellate Officer' as u/s 9 of the PP Act was not persona designate (persons selected to act in their private capacity and not as Judges) but rather a Civil Court since he acts as a Court and the order passed by him constitutes an order of the subordinate court. Against such an order, the remedy under Art 227 lies. Thus, the power of superintendence under Art 227 was exercised by the Single Judge and merely filing the petition under Art 226 would not alter the manner in which the powers have been exercised.

The Appellants had also filed an application for amendment of original pleadings to incorporate certain facts in the SCA. However, the same was not permitted by the High Court on account of delay without reasons.

Accordingly, the appeal was rejected as not maintainable even as the option for challenging the order of the Single Judge was kept open.

Case No.: C/LPA/1680/2019

Case Title: VITHAL BOGRA SHETTY v/s BOARD OF TRUSTEES

Citation: 2022 LiveLaw (Guj) 370

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