1986 (3) TMI 331 - SC - Indian Laws

Summary

Issues Involved:

1. Whether an appeal lies under clause 15 of the Letters Patent of the Bombay High Court against the order of a Single Judge in a petition filed under Article 226 or 227 of the Constitution of India.
2. Whether the judgment of the Full Bench in Shankar Naroba Salunke v. Gyanchand Lobbachand Kothari was correctly decided.
3. Whether Rule 18 of Chapter XVII of the Bombay High Court Appellate Side Rules, 1960, bars an intra-court appeal against the judgment of a Single Judge in a petition under Article 226 or 227.
4. Whether the powers conferred upon the High Courts by Articles 226, 227, and 228 of the Constitution are wholly new powers not possessed by the existing High Courts immediately prior to the commencement of the Constitution.

Summary:

1. Appeal under Clause 15 of the Letters Patent:
The Supreme Court held that an appeal under clause 15 of the Letters Patent does not lie against an order made in the exercise of the power under Article 227 of the Constitution. This is because the reference to s.107 of the Government of India Act, 1915, in Clause 15 of the Letters Patent must necessarily be read as a reference to Art. 227 of the Constitution. Therefore, an appeal under clause 15 is clearly not maintainable against an order made in the exercise of the power under Art. 227.

2. Judgment of the Full Bench in Shankar Naroba Salunke:
The Full Bench case of Shankar Naroba Salunke & Ors. v. Gyanchand Lobbachand Kothari & Ors. was wrongly decided except for the conclusion that no appeal lies under clause 15 of the Letters Patent of the Bombay High Court against the judgment of a Single Judge in a petition under Article 227 of the Constitution. The Supreme Court overruled the Full Bench decision to the extent mentioned above and approved the view taken by the Special Bench in State of Maharashtra v. Kusum Charudutt Bharme Upadhya.

3. Rule 18 of Chapter XVII of the Bombay High Court Appellate Side Rules, 1960:
Rule 18 does not bar a right of appeal conferred by the Letters Patent. The words "finally disposed of" in Rule 18 merely clarify that in such cases, the power of the Single Judge is not confined merely to issuing a rule nisi. An intra-court appeal against the judgment of a Single Judge in a petition under Article 226 is not barred while clause 15 itself bars an intra-court appeal against the judgment of a Single Judge in a petition under Article 227.

4. Powers Conferred by Articles 226, 227, and 228:
The powers conferred by Articles 226, 227, and 228 are not wholly new powers. Article 226 is designedly couched in wide language to enable High Courts to reach injustice wherever found. The power of superintendence under Article 227 is a supervisory jurisdiction intended to ensure that subordinate courts and tribunals act within their authority and according to law. The powers under Articles 226 and 227 are separate and distinct and operate in different fields. The power to issue writs under Article 226 is an exercise of original jurisdiction, whereas the power under Article 227 is not an original proceeding.

The appeal filed by the Appellants from the decision of the Single Judge to the Division Bench was rightly dismissed as being not maintainable. The Supreme Court also dismissed the appeal on merits.