# lllliUI KESBAO MESllRAM & ORS v. RAJlllIKABAl W/O ANANDRAO llAllAPORKAR & Allll

- **Citation:** [1986] 1 S.C.R. 731
- **Court:** Supreme Court of India
- **Decided:** 1986-03-14
- **Case number:** Civil Appeal No. 3683 of 1984
- **Bench:** O. Chinnappa Reddy, D.P. Madon
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/lllliui-kesbao-mesllram-ors-v-rajlllikabal-w-o-anandrao-llallaporkar-allll-9302
- **Pages:** 110

## Headnote

Letters Patent 1929 (Bombay) Clause 15 :
Judgment of a Single Judge
226/227
Intra-COurt
Appeal
in a petition under Article
-
Whether
competent
and
maintainable.
Expression "pursuant to section 108 of the Government of
India Act" - Interpretation of.
Expression
"Power
of
superintendence
under
the
provisions of section 107 of the Government of India Act" -
Whether to be construed as a reference to Art. 227 of the
Constitution.
Bombay High Court Appellate Side Rules, 1960 : Rule 18 -
Expression "shall be heard and· finally disposed of" - Whether
negatives filing of an appeal in a proceeding under Art. 226/
A
B
c
D
227 of the Constitution.
E
Indian High Courts Act, 1861, Government of India Acts
1915- 1919 and 1935 - Whether Constitutional Laws.
Constitution of India, 1950 :
Articles 225, 226 and 227 - Whether confer wholly new
powers on the High Courts existing at the commencement of the
Constitution.
Expression
"subject · to
the
provisions
of
this
F
Constitution" in Article 225 - Interpretation of.
G
Joint petition under Articles 226 and 227 - Implication
of - Whether to be treated as one under Article 226.
Article 227 -
Power of superintendence -
Whether in
addition to that conferred by Article 226.
H
A
B
c
D
E
F
G
H
732
SUPREME COURT REPORTS
(19861 1 s.c.R.
Words and Phrases :
"Judgment" - Meaning of - Clause 15, Letters Patent 1929
(Bombay),
Clause 15 of the Letters Patent, Bombay, in its finally
amended and operative form (January 1929) provided that an
J
appeal shall lie to the High Court of Judicature at Bombay,
from a judgment of one Judge of the High Court, pursuant to
a.108 of the Government of India Act of 1915, not being (a) 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
High Court, (b) an order made in the exercise of revisionsl
jurisdiction, (c) a sentence or order passed or made in the
exercise of the power of superintendence under the provisions
of s.107 of the Government of India Act of 1915, or (d) a
sentence or order passed or made in the exercise of criminal
~
jurisdiction. Rule 18 of Chapter XVII, of the Bombay High
Court Appellate Side Rules, 1960, provides that applications
under Art. 226 or Art. 227 of the Constitution arising ~ut of
the orders passed by the Maharashtra Revenue Tribunal under
any enac.tment, ms.y be heard and finally disposed of by a
Single Judge appointed in this behalf by the Chief Justice.
The appellants' revision application having been allCllled
by the Maharashtra Revenue Tribunal, the first respondent
filed a petition under Art. 227 of the Constitution before the
Nagpur Bench of the High Court of Bombay. By reason of the
aforesaid r.18 the petition was heard by a Single Judge and
allowed, restoring the order of the Sub-·Divisional Officer.
.JI
Against this judgment and order the appellants filed an appeal
under cl.15 of the Letters Patent to a Division Bench of the
Bombay High Court, Nagpur Bench, which was dislliissed as not
being cotopetent in view of the earlier decision of a Full
Bench in Sbar*ar llaroba Sa!nnte I. Ors. y, Gy,,,,,.bancl Lobhecband
Kothari 6 Ors. decided on September 3, 1980, The Full Bench in
that case had concluded that no intra-court appeal lay under
cl.15 of the Letters Patent against the judgment of a Single
Judge of the Bombay High Court in a petition filed under Art.
-~
226 or 227 on the prelliises : (1) that on the coamencement of
the Constitution cl.15 of the Letters Patent having ceased to
be in operation it could not control matters expressl;'
UMAJI KESHAO MESHRAM v. RADHlKABAI
733
A
provided in the Constitution, for the High Courts then in
existence became organically different High Courts as they
acquired a different origin, nature and character since (a)
the Constitution had effected a break with the past and made
absolutely a new original and vital beginning as far as
origin, source of power and conferment of

## Text

_Characters 0–39,794 of 247,453. This is a partial read: ask again with offset=39794 for what follows._

/
731
lllliUI KESBAO MESllRAM & ORS.
v.
RAJlllIKABAl W/O ANANDRAO llAllAPORKAR & Allll.
MARCH 14, 1986
[O. CHINNAPPA REDDY AND D.P. MADON, JJ.)
Letters Patent 1929 (Bombay) Clause 15 :
Judgment of a Single Judge
226/227
Intra-COurt
Appeal
in a petition under Article
-
Whether
competent
and
maintainable.
Expression "pursuant to section 108 of the Government of
India Act" - Interpretation of.
Expression
"Power
of
superintendence
under
the
provisions of section 107 of the Government of India Act" -
Whether to be construed as a reference to Art. 227 of the
Constitution.
Bombay High Court Appellate Side Rules, 1960 : Rule 18 -
Expression "shall be heard and· finally disposed of" - Whether
negatives filing of an appeal in a proceeding under Art. 226/
A
B
c
D
227 of the Constitution.
E
Indian High Courts Act, 1861, Government of India Acts
1915- 1919 and 1935 - Whether Constitutional Laws.
Constitution of India, 1950 :
Articles 225, 226 and 227 - Whether confer wholly new
powers on the High Courts existing at the commencement of the
Constitution.
Expression
"subject · to
the
provisions
of
this
F
Constitution" in Article 225 - Interpretation of.
G
Joint petition under Articles 226 and 227 - Implication
of - Whether to be treated as one under Article 226.
Article 227 -
Power of superintendence -
Whether in
addition to that conferred by Article 226.
H
A
B
c
D
E
F
G
H
732
SUPREME COURT REPORTS
(19861 1 s.c.R.
Words and Phrases :
"Judgment" - Meaning of - Clause 15, Letters Patent 1929
(Bombay),
Clause 15 of the Letters Patent, Bombay, in its finally
amended and operative form (January 1929) provided that an
J
appeal shall lie to the High Court of Judicature at Bombay,
from a judgment of one Judge of the High Court, pursuant to
a.108 of the Government of India Act of 1915, not being (a) 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
High Court, (b) an order made in the exercise of revisionsl
jurisdiction, (c) a sentence or order passed or made in the
exercise of the power of superintendence under the provisions
of s.107 of the Government of India Act of 1915, or (d) a
sentence or order passed or made in the exercise of criminal
~
jurisdiction. Rule 18 of Chapter XVII, of the Bombay High
Court Appellate Side Rules, 1960, provides that applications
under Art. 226 or Art. 227 of the Constitution arising ~ut of
the orders passed by the Maharashtra Revenue Tribunal under
any enac.tment, ms.y be heard and finally disposed of by a
Single Judge appointed in this behalf by the Chief Justice.
The appellants' revision application having been allCllled
by the Maharashtra Revenue Tribunal, the first respondent
filed a petition under Art. 227 of the Constitution before the
Nagpur Bench of the High Court of Bombay. By reason of the
aforesaid r.18 the petition was heard by a Single Judge and
allowed, restoring the order of the Sub-·Divisional Officer.
.JI
Against this judgment and order the appellants filed an appeal
under cl.15 of the Letters Patent to a Division Bench of the
Bombay High Court, Nagpur Bench, which was dislliissed as not
being cotopetent in view of the earlier decision of a Full
Bench in Sbar*ar llaroba Sa!nnte I. Ors. y, Gy,,,,,.bancl Lobhecband
Kothari 6 Ors. decided on September 3, 1980, The Full Bench in
that case had concluded that no intra-court appeal lay under
cl.15 of the Letters Patent against the judgment of a Single
Judge of the Bombay High Court in a petition filed under Art.
-~
226 or 227 on the prelliises : (1) that on the coamencement of
the Constitution cl.15 of the Letters Patent having ceased to
be in operation it could not control matters expressl;'
UMAJI KESHAO MESHRAM v. RADHlKABAI
733
A
provided in the Constitution, for the High Courts then in
existence became organically different High Courts as they
acquired a different origin, nature and character since (a)
the Constitution had effected a break with the past and made
absolutely a new original and vital beginning as far as
origin, source of power and conferment of constitutional B
authority was concerned, and (b) the provision for intra-court
appeal
in
the
Letters
Patent
dealt
with
different
jurisdictions under the ordinary law only and not with any
jurisdiction
conferred
upon
the
High
Court
by
the
Constitution, (2) that even if cl.15 of the Letters Patent
were to apply an appeal would be barred by the express words
of cl.IS itself because both Arts. 226 and 227 provide for the c
SS!le relief, DS11ely, scrutiny of records and control of
subordinate Courts and Tribunals and, therefore, the exercise
of the jurisdiction under these Articles would fall within the
expression 'revisional jurisdiction'
or
"power
of
superintendence", and (3) that the expression "shall be heard
and finally disposed of" in r.18 of Chapter XVII of the Bombay
D
High Court Appellate Side Rules, 1960 negatives the filing of
any appeal in a proceeding under Art. 226 or 227.
In this Appeal by Special Leave against the order of the
Division Bench, in detel'lllining whether an intra-court appeal
lies under cl. IS of the Letters Patent of the Bombay High E
Court to a Division Bench from the judgment of a Single Judge
in a petition filed under Art. 227, the correctness of Sbankar
llaroba Salm*e's case fell for close examination.
Dismissing the appeal, the Court,
lll!Lll : By the Court (per Chinnappa Reddy and Madon, JJ,)
No intra-court appeal lies under cl. IS of the Letters
Patent of the Bombay High Court against the order of a Single
Judge
·exercising
jurisdiction under
Art.
227
of
the
F
Constitution. (743 D-E; 834 D]
G
Per Chinnappa II.eddy, J,
The reference to s.107 of the Government of India Act,
191S in cl.IS of the Letters Patent of the Bombay High Court
H
734
SUPREME COURT REPORTS
[1986] 1 S.C.R.
, A
rust necessarily be read as a reference to Art. 227 of the
Constitution. So read, an appeal under cl. 15 is clearly not
maintainable against an order made in exercise of the power
under Art. 227. [743 E-F]
B
c
D
E
F
G
Per Madon, J.
1.
Under
Art.
225
the
High
Courts ·exercising
jurisdiction in relation to provinces immediately before the
conmencement of the Constitution became the High Courts for
the corresponding States and exercised the same
jurisdiction
and
administered the same law as theretofore, and
the
respective powers of the Judges of such High Courts, including
the power to make rules for the Court and regulate the
sittings of the Court and of members thereof sitting singly or
in Division Courts, remained the same. The Letters Patent of
the Bombay High Court and the Rules made by that High Court
thus continued to be in operation by virtue of the Constitution itself. [760 C-E; 765 G-H]
2.1 The High Courts under the Constitution did not
become organically different institutions from the same High
Courts in existence immediately prior tc the commencement of
the Constitution. [754 E; 811 E]
2.2 The Constitution did not posit a break from the past
and make absolutely a new original and vital beginning, but
was the result of a process of evolution. Almost threef ourths of it is based upon the Government of India Act, 1935,
subject to modifications which were made in the light of the
experience and adopted to a republican form of Government. The
existing institutions, including the High Courts, as also the
laws in force which were in existence at the conmencement of
the Constitution,
were
preserved
and
continued
by
the
Constitution. [800 F; 802 E,C; 805 D]
State of Gujarat v. Vora Fiddali Badruddin Mithibarwala,
[1964] 6 s.c.R. 461 referred to.
..J '
2.3 The Indian High Courts Act, 1861 and the Government
of India Acts, 1915-1919 and 1935 were all constitutional
-\ ~
laws. It is erroneous to characterize them as ordinary laws.
[807 C]
H
''Lj.
UMAJI KESHAO MESHRAM v. RADHIKABAI
735
Sri Sankari Prasad Singh lleo v. Union of India and State
of Bibar, [1952] S.C.R. 89., Union of India etc. v. Tulsiram
Patel etc., [1985] 3 s.c.c. 398,
425-6.,
British
Coal
Corporation and Ors. v. The King, [1935] A.C. 500, 518,
J.C.;
James v. Coaao1111ealth of Australia,
[ 1936]
A.C.
578,
614,
J.C., In re the Central Provinces and Berar Sales of Motor
Spirit and Inbricants Taxation Act,
1938 (Central Provinces
and Berar Act
!lo. nv of 1938) 1939 F.C.R. 18, 36. In re the
Hindu Wollen' s Rights to Property Act, 1937, and the Hindu
lloEn's Rights to Property (A.,.OOgpnt) Act, 1938, [1941]
F .C.R. 12, 26., Navincbandra Mafatlal v.
Collllllssioner of
lllCOlle Tax, Bombay City, [1955] l S.C.R. 829, 836, referred
to.
2.4 Article 215 did not bring any revolutionary change
in their nature and character. All the superior courts which
preceded the High Courts were Courts of Record and the power
to punish for contempt was inherent in and possessed by every
Court of Record. Section 106(1) of the Government of India Act
of 1915 provided that the serveral High Courts would be Courts
of Record, and s.220 of the Government of India Act, 1935 made
an identical provision. [811 D; 810 E; 811 A]
2. 5 Articles 225, 226 and 22; did not confer upon the
High Courts wholly new powers not possessed by the existing
High Courts immediately prior to the commencement of the
Constitution. Article 225 is in pari materia with s.223 of the
Government of India Act, 1935. The power to issue directions,
orders and writs under Art.
226 is modelled upon the
prerogative writ jurisdiction possessed by the three Chartered
High Courts in the exercise of their original jurisdiction
immediately prior to the commencement of the Constitutivn,
though under the Constitution that power has been made wider
and oore extensive and conferred upon every High Court to
enable them to reach injustice wherever found and mould the
reliefs accordingly. Article 227 derives its origin from s.15
of the Indian High Courts Act, 1861, s.107 of the Government
of India Act, 1915-1919 and s.224 of the Government of India
Act, 1935 which conferred upon each of the Chartered High
Court the power of superintendence over all courts subject to
its appellate jurisdiction. [813 D; 826 F; 830 B; 831 E; 815G;
813 F-H]
A
B
c
D
E
F
G
Prabodh Vel"lla and Ors. v. State of Uttar Pradesh and
H
Ors., [1985] 1 s.C.R.
216, llyota of Garabandh<> axd Other
A
B
c
D
736
SUPREME COURT REPORTS
[1986] l s.c.R.
Villages v, ZUl.odar of Parlalti-11 and Anr.,
[1942-43]
70
I.A. 129., Election eo..ts•ion, India v. Saka Venkata Sobba
1ao, [19531 s.c.R. 1144, 1150, Dnrtanath Hindu llndividecl
P8111ly v. 1llcoE Ta Officer, SpWal Circle, laapur & Anr.,
[1965] 3 s.c.R. 536, 540-41 referred to.
3.1 It is the charter of the High Court, whether it be a
statute or Letters Patent, which generMlly confers a right of
intra-court appeal and it ie the rules made under tha rulemaking power of the High Court which generally provide which
matters are to- be heard by a Single Judge and which by a
Division Bench, Where by the charter of a High Court matters
are not required to be heard by l!ny particul•r tiumber of
Judges and ouch charter provides for an intra-court appeal
from the decbion of a Single Judge, whether auch an appeal
would lie or not would depend upon whether by the rules llllde
by the High Court in the exercise of its rule-making power
the matter is heard by a Single Judge or a Diviaion Bench,
subject to the condition that 1uch right of appeal la not
otherwise excluded. [839 R; 840 A~]
3.2 Under cl.15 of the Letter• Patent of the Bombay High
Court, frOll the judgment of a Single Judge an appeal lies to a
Division Bench provided it i1 not barred by •ny atatute, and
E
provided the conditions laid down by cl.15 itself vi11
(i)
that it 111111t be a judgment pur•uant to aection 108 of tha
Govern11ent of India Act of 1915, and (ii) that it 1111st not be
a judgment falling within one of the excluded categories aet
out in clauae 15, are fulfilled. [824 A~]
F
G
H
3.3 By the Letters Patent dated March 11, 1919 the
exprea.ion "pur•uant to s.108 of the Government of India Act"
wu substituted for the 1xpra11ion "punuant to 1.13 of the
said recited Act", that ii, the Indian High Courta Act, 1861,
When the Government o! India Act of 1915-1919 .,.. repealed and
replaced by the Government of lndi• Act, 1935, the rule llllking
power of the High Court and of the Chief Juatice to u1isn
work either to Single Judg" or to Division Courto were
continued unimpaired and unaffected under 1.223 of the latter
Act. Letter• Patent establishing the High Court•, iaaued by
the Crown, falls within the muning of the term "inet1'Ulllellt"
u
uaed in •• 8(2) of the Gen1ral Claua1a Act,
1897,
Th1refo~e,
by
th•
combined
operation of
a.38 cf
the
'("
•
f
UMAJI KESHAO MESHRAM v, RADHIKABAI
737
Interpretation Act, 1-889 and s.8 of the General Clauses Act,
the expression "pursuant to •· 108 of the Government of India
Act", is, on the coming into force of the Government of India
Act, 1935, to be read as "pursuant to s. 223 of the Government
of India Act, 1935", and since Art. 225 of the Constitution ii
A
in !ari materia with a. 223' of the Government of India Act,· 11
193 , on the commencement of the Constitution the expreaaion
"pursuant to s. 223 of the .Government of India Act" - deemed
to have been substituted for the expression "pursuant to a.108
of the Government of India Act", is to be read as "pur1US11t to
Art. 225 of the Constitution" by virtue of Art. 367(1), which
mokes
the
General
Clauses
Act
applicable
for
the
interpretation of the Constitution. [824 D,G; 825 B; 826 E-ft;
827 A)
latioaal 8-ing 'llu:ead Co. I.tel. ". J- a..dwic:t •
:aio.. 1.1:4., [1953) s.c.R. 1028 referred to,
c
3, 4 When 1 Single Judge of a Chartered High Court
D
decides 1 petition under Art. 226 or ·227, his judilllQDt i1 ona
given pureuant to Art. 225 and is appealable llllder cl.15 of
the Letter• Patent unle11 it fall• within one of the excluded
categoria1. [829 Pl
3. 5 Under cl. 15 no intra-court appeal lay aga1mt en. E
order paa1ed or made in the exercise of the power of
1uperintllldence Under the proviaions of s. 107 of the
Government of India Act. By the e1111e proce11 of 'interpretation
by reeaon of which the phrase •pursuant to
a~ 108 of the
Gove~t of India Act• in cl.15 i1 to be rw as ''pur1US11t
to Art. 225 of the Constitution of India" the phrae "order
passed or lllde in the exercise of the power of euperinteadeace
ulldar the proviaione of •· 107 of the Gover11111nt of India Act"
i• to b1 read •
"order paued or made in the 'nerci11 of
power of superintendence under the provi1ioiw of Art, 227 of
the Constitution". So read, an intra-court appul doaa not lie
agaimt the judgment of a Single Judge of the lloaba1 High
Court given in 1 petition ulld•r Art. 227 by reuo11 of 1uch
appeal being lllJlree1ly barred by cl.15 of th• Letters Patent.
[834 1-D]
J,G, adJdwle "' G.L lobde, [1965) 67 ao., L,11., 6091
lln1rberw!q lluaa "• Bare lrUbna DI & On,, A, l,R, 1953 Cal,
636; SbrlJd.- lddtAr 11114 On ..... ldll!m• iiiiid. Red1Har ...
On., A.I.a. 1955 Mad. 72; In re I v. ft~ llaUI&,
p
G
H
A
B
c
D
E
F
G
H
738
SUPREME COURT REPORTS
[1986] I S.C.R.
I,L,R, 1955 Mad. 1083, s.c. = A.I.R. 1955 Mad. 287; J & K Cooperative Bank v. Sbns-ud-din-llaclla, A.I.R, 1970 J & K 190;
labwar Singh v. llaa Piari and Anr., A.I.R, 1978 H.P. 39 and
South Asia Industries Pvt. Ltd. v. s.B. Sarup Singh & Ora.,
(1965] 2 s.c.R. 756 referred to.
In the instant case the petition filed by the appellants
before the Nagpur Bench of the Bombay High Court
was
admittedly under Art. 227
and under the rules of the High
Court it was heard by a Single Judge. An intra-court appeal
against the decision of the learned Single Judge in a·petition
under Art. 227 having been expressly barred under cl. 15 of
the Letters Patent of that High Court, the appeal filed by the
appellants from the decision of the Single Judge to the
Division
Bench
was
rightly
dismissed
as
being
not
maintainable. (840 D]
State of Maharashtra v. Kwnm Olarudutt Bbama Upadbye,
(1981] 83 Bom. L.R. 75, s.c. 1981 Mah. L.J. 93 approved.
Sbanltar llaroba Salume & Ora. v. Gyanchand Lobhachand
Xotbari & Ora., L,P, As Nos. 3,10,11 & 17 of 1979 and 34 of
1980 decided on September 3, 1980, over-ruled in part.
4.1 Where a petition filed under Art. 226 is according
to the rules of a particular High Court heard by a Single
Judge, an intra-court appeal will He from the judgment if
such a right of appeal is provided in the Charter whether such
charter be . Letters Patent or a statute. Clauae 15 of the
Letters Patent of the Bombay High Court gives in such a case a
right of intra-court appeal and, therefore, the decision of a
Single Judge given in a petition under Art. 226 would be
appealable to a Division Bench of that High Court. (831 H;
832 A-B]
4,2 The words "be heard and finally disposed of by a
Single Judge" uaed in r.18 of Chapter XVII of the Bombay High
Court Appellate Side Rules, 1960 do not and cannot possibly
have the effect of barring a right of appeal conferred by the
Letters Patent. Under r. 1 and 17 of the Rules applications
under 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 a rule nisi in an application under Art.
226 but precludes him from paas!ng any final order on such
.,
•y
UMA.JI KE SHAO MESHRAM v. RADHIKABAI
739
application. The use of the words "finally disposed of" in
r,18 clarifies the position that in such cases the power of
the Single Judge is not confined merely to issue a rule ~
(837 B; 836 E-G]
4. 3 Proceedings under Art. 226 of the Constitution
cannot be governed by rules made by the High Courts under the
Code of Civil Procedure, 1908.
Under ss. 122 and 125 of the
Code, the High Courts are conferred the power to make rules
regulating their own procedure and the procedure of the civil
courts and they can by such rules annul, alter or add to all
or any of the rules in the First dchedule to the Code. Under
s. 141, the procedure provided in the Code in regard to suits
is to be followed, as far as it can be made applicable, in all
proceedings in any court of civil jurisdiction but by virtue
of the Explanation to that section inserted by the Code of
Civil
Procedure
(Amendment)
Act,
1976
the
expression
'proceedings'
occurring therein is not to include any
proceeding under Art. 226. [839 B-E]
Shah Bahdsl Xhillji v. Jayaben D. Kania & Anr., [1982] 1
s.c.R. 187 distinguished.
4. 4 The right of appeal against the judgment of a Single
Judge is given by the Letters Patent which has been continued
in force by Art.225. 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, An intra-court appeal
against the judgment of a Single Judge in a petition under
Art.226 is not barred while cl.15 itself bars an intra-court
appeal against the judgment of a Single Judge in a petition
under Art.227. [837 A-C]
4,5 Where the· facts justify a party in filing an
application either under Art.226 or 227 of the Constitution,
and the party chooses (o 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 Art.226,
and if in deciding the matter, in the final order the Court
gives ancillary directions which may pertain to Art,227, this
ought not to be held to deprive a party of the right of appeal
under cl.15 of the Letters Patent where the substantial part
of the order sought to be appealed against is under Art,226.
(837 F-G]
A
B
c
D
E
F
G
H
A
740
SUPREME COURT REPORTS
[19861 l s.c.a.
Barf. Vialmu X-th v. Syed Almd Ialwque •Ora., [1955}
1 s.c.R. 1104; Alclal Singh • Ora. v. laran Singh • Ora. ,
A.I.R, 1957 All 414; Raj liaban Jain v. 'l\ilai n.n, A.I.R.
1959 Punj. 291; Jarhlal Dutt • Ora. v. People9' Co-;,perative
Transport Soc:iety Ltd., Rw Del.bi •Ora., A.I,R, 1961 Punj. 24
ref erred to.
B
5.1 Unle11 excluded from the purview of cl.15, an
,l
c
D
E
p
G
H
intra-court appeal lies -under that clauae against a judgment
1delivered in the uercise of any of the civil jurisdictions
Cl>nf&rred by the Letter• Patent, whether by a clause preceding
or auccaeding cl.IS. [819 El
5,2 The word "judgment" in cl.15 of the Lettere Patent
ia not qualified in any way as to the jurisdiction in which it
is given ucept that it should not be a sentence or order
puaed or made in any criminal trial. It embraces not only
judgment• given in the exercise of jurisdictions 1pecifically
mentioned in the Letters Patent but also in the exercile of
jurisdictions not
10 ,,.ntioned, except
tho1e expressly
excluded by cl.15 it1elf, [818 E; 819 F; 818 HJ
8aroda lloolldurM Doe- v. Tincowr• llmld9e, 1884 Hyda'a
Reports 70; law Slumo ltoyee "• i.1chweput Doosur • Ora.,
1867 (7) Sutherland'• Weakly Reporter 52; Molumdra Lall Mitter
v. Alllndo "-r 111.tter, I.L.R. 1897 (25) Cal. 236; Collector
of llollblly v. Ieeac Puhu, 1947 (49) Bom. L.R, 709 F.B.;
)leboeedel!i Allahax v. Iallllilji Abdp!eli, 1926 (28) Bom. L,R,
471; llagbnntth leehav Xlwdilkar v. Poona ltunf.cipalitJ 111111
Anr., 1944 (46) Bom. L,R, 675; Rational Sariag Thrad Co. Ltd.
v. Juee a.tvic:k •Bro.. Ltd., [1953} s.c.R. 1028 and llollth
Allia lndw!triee PY!:. Ltd. v. S.B. Suup Sinr;h •Ora., [1965] 2
s.c.a. 756 referred to.
6,1 Under Art. 225 the juri1diction of the 1xi1ting High
Court•
haa been pr111rved and continued subject to the
provbio11.1 of the Co11.1titution and of any law made by the
appropriate Legislature. It comprehend• within it• 1cope not
only the jurisdiction which the existing High Courts posaeeaed
i11111edi1tely prior to the commenc.,,.nt of the Co!llltitution but
aleo the juriadiction and powere which the other Articlea of
the Conatitution, 1uch aa Arts. 226, 227 and 228 confer upon
the High Court•• [821 F-G; 822 Fl
' ·:"i:
UMAJI KESHAO· MESHRAM v, RADHlKABAl
741
Rational Selfing 'J:hrelld Co. Ltd. v. ~
a..dlrldt '
Broe. Ltd., (1953] s.c.a. 1028; aiau-, Budge Badge llmd.c:ipality v. Mo11:gEa Illa & On., A.1.R, 1953 Cal. 433 and SIMO
Prau4 v, State of O.P., A. !.R. 1965 All. 106 referred to.
A
6,2 The fact that Art. 225 IUk.u the juri1dictio11 of the
11
mating High Courts "subject to the law of the appropriate
Legi1lature"· does llOt mea11 that the jurildictio11 under Art.
226 or 227 C:alluot come withi11 the scope of Art. 225. A law
made by an appropriate Legielatur1 cm amend a110ther law
enacted by it but it e&llllOt amend or affect the proviaiou of
the Constitution, and ea Arts. 226, 227 and 228 are 110t made
subject to any law made by Parll11111e11t or the State Legiec
lature, the powers conferred by these three Articles e&llllOt be
limited, abridged or take11 t.way by &II'/ Legi1lature. They C&ll
ollly ba affected by amending the Constitution. (823 C-D]
6. 3 A provisio11 for a right of appeal l.1 llOt one which
in •II'/ manner limits, abridges, take• away or adversely D
affect• the 'power of the High Court• under Art. 226 or 227.
[823 F]
6,4 The power to 1llllke rules for the exerciee of
jurisdiction under Art1. 226 and 227 by the exl.eting High
Courts i• co11tailled in Art. 225 ollly. Thie ru~e lll&king power
E
extend• to all jur11dictione and power• po111aaed by the
existing High Courts, whether at the date of their Letters
Patent or of the Governm8iit of India Act of 1915-1919 or of
the Governme11t of India Act, 1935, or conferred upon them by
the Conatitution itself or aubaequant to the comeneement of
the Conatitution by any amend111nt of the Coutitutio11 or any F
law made by the appropriate legielature. [829 A; 828 F-G]
7, Whe11 a11 appeal 11 filed against thl judf!llllnt of thl
Single Judge given i11 a p1titio11 under Art, 226 or 227, it
doe1 110t 111111111nt to filing a 1&cond appul in tu •- matter,
for a11 appaal I.I llOt a fre1h procaadi118 but 111raly a co11tinuaG
tion of the original procaedillP• The expra11ion ''High Court"
Uled in 1tatute1 providing for appeal• to the High Court only
muns thl High Court acting through 0111 Judga or a Divi1io11
Court couilting of two or more Judges u may ba provided by
thl rules of Court ullla11 •Ill' enactment apecifically providea
for a particular number of Judges to hlar •II'/ particular H
matter. [829 C-Dl
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SUPREME COURT REPORTS
[1986] 1 s.c.R.
Garlkapatti Veeraya v.
N.
Subbiah a.audbury,
[1957]
s.c,R. 488; and Ab.dabad Mfg. & Calico Ptg. Co. Ltd. v. Baa
Tahel Rawna..t & Ors., [1973] 1 s.c.R. 185 referred to.
8.1 Though at times it may appear that a Writ of
certiorari or a Writ of prohibition partakes the nature of
superintendence inastDJch as the end result is the same, the
nature of the power to issue these writs is different from the
supervisory or superintending power under Art. 227. [830 E-F]
8.2 The powers conferred by Arts. 226 and 227 are
separate and distinct and operate in different fields. Their
source and origin are different and the models upon which they
are patterned are also different. The power to issue a writ in
the nature of habeas corpus or 118nd...,,s or quo warranto or
prohibition or certiorari under Art.226 cannot be equated with
the power of superintendence over the subordinate courts and
tribunals under Art. 227. In a proceeding under Art. 226 the
)
person, authority or the State against whom the direction,
_,..
order or writ is sought is a necessary party. Under Art.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. [830 F,B,C, G-H; 831 A]
AhEdabad Mfg. & Calico Ptg. Co. Ltd. v. Rma Tab<'.!
R..,and & Ors., [1973] 1 s.c.R. 185; State of Gujarat v.
Vakbatsinghji Vajesingilji Veghela, A.I.R. 1968 S.C. 1487,
1488; """'-dalli Alla""1x v. Insilji AbdnlaH, [1926] 28 Bom.
L,R, 471; Ragln•Mtb ltesbav Kbadilkar v. Poona Municipality &
Am:., [1944] 46 Bom. L.R. 675; Ryots of Garabandbo & Other
f-~
Villages v. Zamf..tar of Parlakf'"""f & Am:., 1942-43 (70) I.A.
129 and !btlvi Hamid Hasan llcmani v. Bamrarilal Roy & Ors.,
L.R. [1946-47] 74 I.A. 120 referred to.
8.3 A proceeding under Art.
226
is an original
proceeding while a proceeding under Art. 227 is not an
original proceeding. [831 F]
State of Uttar Pradesh v. Dr. Vijay Anand Haharaj,
-\.,,
[1963] 1 s.c.R. l; eo..tssioner of lncom!-tax, Bombay & Anr.
v. Iabwarlal llbagwandas & Ors., [1966] l s.c.R. 190; Rmaesh &
UMAJI KESHAO MESl!RAM v. RADHIKABAI [ CHINNAPPA REDDY, J. ]
7 43
Anr. v. Seth Gmid•Jal llotilal Patni & Ora. [1966] 3 s.c.R.
198; Arbind Xumr Singh v. !land lishore Prasad & Ora. [1968] 3
s.c.R. 322; AhEdahad Mfg. & Calico Ptg. eo. Ltd. v. 11aa Tahel
1..,anc1 & Ora. [1973] 1 s.c.R. 185 and Varyaa Singh & Anr. v.
Aioarnath & Anr. [1954] s.c.R. 565 referred to.
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3683 of
1984.
From the Judgment and Order dated 16th September, 1980 of
the Bombay High Court in Letters Patent Appeal No. 46 of 1980.
T.U. Mehta and c;K. RatnaparkhJ. for the Appellants.
Naunit Lal, Kailash Vasdev and Mrs. Vinod Arya for the
Respondents.
The following Judgments were delivered
.CHINNAPPA REDDY, J. Unfamiliar as I am with the history,
tradition and the lore of the city and the High Court of
Bombay, I content myself by agreeing with
the conclusion of
my learned brother that no appeal under clause 15 of the
Letters Patent lies to the High Court against the order of a
single judge of the High Court exercising jurisdiction under
Art. 227 of the Constitution, no less and no more. ·I do not
·have any doubt that the reference to s.107 of the Government
of India Act, 1915 in Clause 15 of the Letters Patent IDJSt
necessarily be read as a reference to Art.
227 of the
Constitution. So read an appeal under
clause 15 is clearly
not maintainable against an order made in exercise of the
power under Art. 227. This is the view taken by all the High
Courts in India except the High Court of Bombay, where alone
opinion has not been unanimous.
MADON, J. The question which falls for determination in
this Appeal is ''Whether an appeal lies under clause 15 of the
Letters Patent of the Bombay High Court to a Division Bench of
two judges of that High Court from the judgment of a Single
Judge of that High Court in a petition filed under Article 226
or 227 of the Constitution of India?"
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SUPREME COURT REPORTS
(19861 1 s.c.R.
The facts which have given rise to this Appeal by
Special Leave granted by this Court need to be briefly stated.
The First Respondent, Radhikabai, is a widow. She is the owner
of three fields situate at Mouza Khed-Makta, Tahsil Brahmapuri, District Chandrapur. Kesheo, the father of the Appellants, was the tenant of the said fields. The First Respondent
filed an application under section 36(2) of the Bombay Tenancy
and Agricultural Lands (Vidarbha Region) Act, 1958 (Bombay Act
No.
XCIX of 1958), read with section 39 of that Act for
possession of the said fields on the ground that she wanted
them for personally cultivating them. The said application was
allowed and she took possession of the said fields. On the
ground that instead of personally cultivating the said fields
the First Respondent had leased them to the Second Respondent,
the Appellants filed an application under section 52 of the
Tenancy Act claiming that they had become entitled to have the
possession of the said fields restored to them. It was the
case of the First Respondent that the Second Respondent was
working in the said fields as her servant on a monthly salary.
The Appellants' said application was allowed by the Additional
Tahsildar, Brahmapuri. The First Respondent's appeal against
the said order was allowed by the Sub-Divisional Officer,
Brahmapuri. The Appellants thereupon went in revision to the
Maharashtra Revenue Tribunal at Nagpur and the Tribunal
allowed the said revision application. Thereupon the First
Respondent
filed a petition under Article
227
of
the
Constitution of India before the Nagpur Bench of the High
Court of Bombay being Special Civil Application No. 1392 of
1974. By reason of the provision of Rule 18 of Chapter XVII of
the Bombay High Court Appellate Side Rules, 1960, the said
petition was heard by a learned Single Judge of the said High
Court who allowed the petition, set aside the order of the
Tribunal and restored the order of the Sub-Divisional Officer.
Against this judgment and order the Appellants filed an appeal
under clause 15 of the Letters Patent to a Division Bench of
the Bombay High Court, Nagpur Bench. The Division Bench
dismissed the said appeal as not being competent in view of
the decision of a Full Bench of the Bombay High Court, Nagpur
Bench, in Shankar Naroba Salunke and Others v. Gyanchand
l.<>hhach!lnd Kothari and Others Letters Patent Appeals Nos 3,
10, 11 and 17 of 1979 and 34 of 1980 decided on September 3,
1980. It is against the said order of the Division Bench that
the present Appeal by Special Leave has been filed by the
Appellants.
•
UMAJI KESHAO MESHRAM v, RADHIKABAI [MADON, J,]
745
As the Appellants' Letters Patent Appeal was dismissed
as being not maintainable by reason of the judgment given by
the Full Bench of the said High Court, what really falls to be
considered in the present Appeal is the correctness of that
judgment.
The High Court of Judicature at Bombay was established
by Letters Patent dated June 26, 1862, issued by the British
Crown in pursuance of authority conferred upon it by the
Indian High Courts Act, 1861 (24 & 25 Viet., c.104). Clause 14
of the said Letters Patent provided as follows:
A
B
"14.
Appeal
from
the
<:ourts
of
original c
jurlscliction to tbe High <:ourt in its Sppellate
jurisdiction. -
And we do further ordain that an appeal shall
lie to the said High Court of Judicature at Bombay
from the judgment, in all cases of original civil D
jurisdiction, of one or more Judges of the said
High Court or of any Di vision Court, pursuant to
Section 13 of the said recited Act: Provided always
that no such appeal shall lie to the High Court as
aforesaid from any such decision made by a majority
of the full number of Judges of the said High E
Court, but that the right of appeal in such case
shall be to Us, Our heirs or successors, in Our 0r
Their Privy
Council in manner hereinafter provided.11
The Letters Patent issued in 1862 were revoked and F
replaced by Letters Patent dated December 28, 1865. Clause 15
of the new Letters Patent in its original form was in the
folloWing terms
'115.
Appeal
from
the
<:ourts
of
original
jurlscliction to tbe High <:ourt in its appellate G
jurisdiction. -
And we do further ordain that an appeal shall lie
to the said High Court of Judicature at Bombay,
from the judgment (not being a sentence or order
passed or made in any criminal trial) of one Judge H
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SUPREME COURT REPORTS
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of the said High Court, or of one Judge of any
Division Court, pursuant to section 13 of the said
recited Act; and that an appeal shall also lie to
the said High Court from the judgment not being a
sentence or order as aforesaid, of two or more
Judges of the said High Court, or of such Division
Court, wherever such Judges are equally divided in
opinion, and do not a100unt in number to a majority
of the whole of the Judges of the said High Court,
at the time being; but that the right of appeal
from other judgments of Judges of the said High
Court, or of such Division Court, shall be to Us,
Our heirs or successors, in Our or Their Privy
Council, as hereinafter provided."
By Letters Patent dated March 11, 1919, published in the
Bombay Government Gazette dated June 19, 1919, Part I, pages
1446-7, the words and brackets in clause 15,
namely,
"(not
being a sentence or order passed or made in any criminal
trial)", were substituted by the words and brackets "(not
being an order made in the exercise of revisional jurisdiction
and not being a sentence or order passed or made in the
exercise of the power of superintendence under the provisions
of section one hundred and seven of the Government of India
Act, 1915, or in the exercise of criminal jurisdiction)", By
Letters Patent dated December 9, 1927, published in the Bombay
Government Gazette dated February 2, 1928, Part I, pages
196-7, clause 15 was substituted. This subgtituted clause was
amended by Letters Patent dated January 22, 1929, published in
the Bombay Government Gazette dated January 24, 1929, Part I,
at pages 131-2. The substituted clause 15 as amended in 1929
reads as follows :
"15. Appeal 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 Bombay 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
UMAJI KESHAO MESHRAM v. RADHIKABAI [MAOON, J. J
7 4 7
A
order made in the exercise of revisional jurisdiction and not beirig a sentence or order passed or
made in the exercise of the power of superintendence under the provisions of section 107 of the
Government of India Act or in the exereise of
criminal jurisdiction) of one Judge of the ·said B
High Court or one Judge of any Division Court,
pursuant to section 108 of the Government of India
Act, and that notwithstanding anything hereinbefore
provided an appeal shall lie to the said High Court
from a judgment of one Judge of the said High Court
or one Judge of any Division Court, pursuant to
section 108 of the Government of India Act made on c
or after the first day of· February One thousand
nine hundred and twenty-nine 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, where the Judge who passed the o
judgment declares that the case is a fit one for
appeal; but that the right of
appeal from other
judgments of Judges of the said High Court or of
such Division Court shall be to Us, Our Heirs or
Successors in Our or Their Privy Council, as hereinafter provided."
E
In clause 15 as substituted in 1927 the words "on or after the
first day of February One thousand nine · hundred and twentynine" did not find a place but were inaerted by the said
Letters Patent of 1929.
'
It may be pointed out that the provision in clause 15
providing for an appeal from a judgment , in a second appeal
decided by a Judge of the High Court if such Judge declares
that the case is a fit one for appeal has now become
inoperative in view of section lOOA of the Code of Civil
Procedure, 1908, which was insf!rted in that Code by the Code
of Civil Procedure (Amendment) Act, 1976, · under which no
further appeal is to lie against the judgment of a single
Judge of the High Court in a second appeal. The provision in
clause 15 providing for an appeal from· the judgment of one
Judge of any Di vision Court has also become redundant and
inoperative after the amendment of clause 36 of the Letters
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SUPREME COURT REPORTS
[1986] 1 S.C.R.
Patent by the said Letters Patent dated December 9, 1927.
Prior to such amendment where a Division Bench was composed of
two or more Judges and
~he Judges were equally divided in
opinion as to the decisiqn to be given on any point, the
opinion of the senior Judge was to prevail and under clause 15
an appeal lay from his judgment. After the amendment of clause
36, if the Judges of the Division Bench are equally divided,
they are to state the point upon which they differ and the .J '-
case has then to be heard upon that point by one or more of
the·other·Judges and the point is to be decided according to
the opinion of the majority of the Judges who have heard the
case including those who first heard it.
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When · analysed snd broken up into its competent parts .
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clause 15 in its finally amended and operative form reads as
follows :
An appeal shall lie ·to the High Court of Judicature
at Bombay -
I"'....,
(1) from a judgment
(2) of one Judge of the High Court
(3) pursuant to section 108 of the Government of
India Act of 1915
(4) not being -
(a) 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 High
Court,
(b) an order made in the exercise of revisional
jurisdiction,
(c) a sentence or order passed or 'made in the
exercise of the power of superintendence under the
provisions of section 107 of the Government of (""
India Act of 1915, or
• 'i-
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UMAJI KESHAO MESllRAM v. RADHIKABAI [MADON, J. ]
749
(d) a Sentence or order passed or made in the
exercise of criminal jurisdiction.
The Letters Patent of the Calcutta, Bombay and Madras
High Courts are tmltatis tmltandis in the same terms with minor
variations, mostly as a result of amendments subsequently
made. The word "judgment" is not defined in the Letters Patent
and has been the subject-matter of conflicting decisions by
these three High Courts. The question fell for consideration
of this Court in Shah Babula! Khimji v. Jayaben D. Kania and
Another [1982] l S.C.R. 187. In that case, a Single Judge
sitting on the Original Side of the Bombay High Court dismissed an application made by the appellant for appointment of an
interim receiver and the grant of an interim injunction. An
appeal against that order was dismissed by a Division Bench of
the High Court on the ground that it was not maintainable
under clause 15 of the Letters Patent.