1952 (9) TMI 42 - HC - Indian Laws

Summary

Issues Involved:

1. Whether an appeal lies to the High Court from a judgment of a single Judge given under Article 226 of the Constitution.
2. Whether the appeal is barred by limitation.
3. The validity of the resolution passed by the Budge Budge Municipality and the subsequent notice issued.
4. The right to relief under Article 226 despite the existence of an alternative remedy.

Detailed Analysis:

1. Whether an appeal lies to the High Court from a judgment of a single Judge given under Article 226 of the Constitution:

The court examined whether an appeal lies to the High Court from a judgment of a single Judge under Article 226. It was contended that the power given by Article 226 is given to the 'High Court', and once exercised by a Judge, it is exhausted. The court rejected this contention, stating that the power must be exercised according to the High Court's rules and provisions of its Letters Patent. The court concluded that an appeal within the High Court from a judgment given under Article 226 by a single Judge is permissible, as the appellate division of the High Court is also part of the High Court.

2. Whether the appeal is barred by limitation:

The court addressed whether the appeal was time-barred. The judgment was delivered on 16-3-1951, and the appeal was filed on 5-6-1951. It was argued that the period of limitation was 20 days under Article 151 of the Limitation Act, making the appeal time-barred. The court noted that there was a mistaken practice of treating such appeals as governed by a 60-day limitation period, based on a convoluted interpretation of the rules. The court held that Article 151, Limitation Act, applies, and the appeal was indeed time-barred. However, due to the prevailing confusion and mistaken practice, the court extended the period of limitation under Section 5 of the Limitation Act and condoned the delay.

3. The validity of the resolution passed by the Budge Budge Municipality and the subsequent notice issued:

The court analyzed the resolution and notice issued by the Budge Budge Municipality, which aimed to close the municipal slaughterhouse and discontinue licenses for the slaughter of draught animals and the sale of beef. The court held that the resolution was based on extraneous considerations not relevant to Section 370(2) of the Bengal Municipal Act. The court noted that the resolution and notice referred to licenses under Sections 407 and 418, not Section 370(1). The court found that the resolution to close the slaughterhouse was within the Commissioners' discretion under Sections 402 and 403 of the Act. However, the resolution regarding the discontinuation of licenses under Sections 407 and 418 was beyond the Commissioners' powers and thus invalid.

4. The right to relief under Article 226 despite the existence of an alternative remedy:

The court addressed the contention that the respondents had an alternative remedy of an appeal under Section 531 of the Bengal Municipal Act. The court held that there was no order to appeal against, as no license had been refused. The existence of an alternative remedy does not bar relief under Article 226. The court maintained the learned Judge's order directing the consideration of the respondents' applications for license renewal according to law, as the respondents had a right to have their applications considered.

Conclusion:

The appeal was allowed in part. The judgment and order of the learned Judge were set aside concerning the cancellation of the resolution of 24-2-1950. The rest of the judgment and order, including the cancellation of the notice and the direction to consider the respondents' applications for license renewal, were maintained. Each party was ordered to bear its own costs in the appeal.