Gujarat High Court
Dahyabhai M Solanki vs State Of Gujarat on 3 July, 2023
Bench: Biren Vaishnav
C/LPA/741/2023 ORDER DATED: 03/07/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 741 of 2023
In R/SPECIAL CIVIL APPLICATION NO. 17399 of 2013
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
In R/LETTERS PATENT APPEAL NO. 741 of 2023
With
R/LETTERS PATENT APPEAL NO. 742 of 2023
In
SPECIAL CIVIL APPLICATION NO. 17404 of 2013
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
In R/LETTERS PATENT APPEAL NO. 742 of 2023
In
SPECIAL CIVIL APPLICATION NO. 17404 of 2013
With
R/LETTERS PATENT APPEAL NO. 745 of 2023
In
SPECIAL CIVIL APPLICATION NO. 17418 of 2013
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
In R/LETTERS PATENT APPEAL NO. 745 of 2023
In
SPECIAL CIVIL APPLICATION NO. 17418 of 2013
With
R/LETTERS PATENT APPEAL NO. 746 of 2023
In
SPECIAL CIVIL APPLICATION NO. 17434 of 2013
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
In R/LETTERS PATENT APPEAL NO. 746 of 2023
In
SPECIAL CIVIL APPLICATION NO. 17434 of 2013
With
R/LETTERS PATENT APPEAL NO. 747 of 2023
In
SPECIAL CIVIL APPLICATION NO. 17419 of 2013
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
In R/LETTERS PATENT APPEAL NO. 747 of 2023
In
SPECIAL CIVIL APPLICATION NO. 17419 of 2013
With
Page 1 of 30
Downloaded on : Tue Jul 04 20:40:52 IST 2023
C/LPA/741/2023 ORDER DATED: 03/07/2023
R/LETTERS PATENT APPEAL NO. 748 of 2023
In
SPECIAL CIVIL APPLICATION NO. 17397 of 2013
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
In R/LETTERS PATENT APPEAL NO. 748 of 2023
In
SPECIAL CIVIL APPLICATION NO. 17397 of 2013
With
R/LETTERS PATENT APPEAL NO. 751 of 2023
In
SPECIAL CIVIL APPLICATION NO. 17396 of 2013
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
In R/LETTERS PATENT APPEAL NO. 751 of 2023
In
SPECIAL CIVIL APPLICATION NO. 17396 of 2013
With
R/LETTERS PATENT APPEAL NO. 752 of 2023
In
SPECIAL CIVIL APPLICATION NO. 17407 of 2013
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
In R/LETTERS PATENT APPEAL NO. 752 of 2023
In
SPECIAL CIVIL APPLICATION NO. 17407 of 2013
With
R/LETTERS PATENT APPEAL NO. 755 of 2023
In
SPECIAL CIVIL APPLICATION NO. 17428 of 2013
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
In R/LETTERS PATENT APPEAL NO. 755 of 2023
In
SPECIAL CIVIL APPLICATION NO. 17428 of 2013
With
R/LETTERS PATENT APPEAL NO. 756 of 2023
In
SPECIAL CIVIL APPLICATION NO. 17425 of 2013
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
In R/LETTERS PATENT APPEAL NO. 756 of 2023
In
SPECIAL CIVIL APPLICATION NO. 17425 of 2013
With
R/LETTERS PATENT APPEAL NO. 757 of 2023
In
Page 2 of 30
Downloaded on : Tue Jul 04 20:40:52 IST 2023
C/LPA/741/2023 ORDER DATED: 03/07/2023
SPECIAL CIVIL APPLICATION NO. 17409 of 2013
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
In R/LETTERS PATENT APPEAL NO. 757 of 2023
In
SPECIAL CIVIL APPLICATION NO. 17409 of 2013
With
R/LETTERS PATENT APPEAL NO. 762 of 2023
In
SPECIAL CIVIL APPLICATION NO. 17416 of 2013
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
In R/LETTERS PATENT APPEAL NO. 762 of 2023
In
SPECIAL CIVIL APPLICATION NO. 17416 of 2013
With
R/LETTERS PATENT APPEAL NO. 763 of 2023
In
SPECIAL CIVIL APPLICATION NO. 17398 of 2013
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
In R/LETTERS PATENT APPEAL NO. 763 of 2023
In
SPECIAL CIVIL APPLICATION NO. 17398 of 2013
With
R/LETTERS PATENT APPEAL NO. 769 of 2023
In
SPECIAL CIVIL APPLICATION NO. 17435 of 2013
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
In R/LETTERS PATENT APPEAL NO. 769 of 2023
In
SPECIAL CIVIL APPLICATION NO. 17435 of 2013
With
R/LETTERS PATENT APPEAL NO. 770 of 2023
In
SPECIAL CIVIL APPLICATION NO. 17411 of 2013
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
In R/LETTERS PATENT APPEAL NO. 770 of 2023
In
SPECIAL CIVIL APPLICATION NO. 17411 of 2013
With
R/LETTERS PATENT APPEAL NO. 771 of 2023
In
SPECIAL CIVIL APPLICATION NO. 17405 of 2013
With
Page 3 of 30
Downloaded on : Tue Jul 04 20:40:52 IST 2023
C/LPA/741/2023 ORDER DATED: 03/07/2023
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
In R/LETTERS PATENT APPEAL NO. 771 of 2023
In
SPECIAL CIVIL APPLICATION NO. 17405 of 2013
With
R/LETTERS PATENT APPEAL NO. 772 of 2023
In
SPECIAL CIVIL APPLICATION NO. 17403 of 2013
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
In R/LETTERS PATENT APPEAL NO. 772 of 2023
In
SPECIAL CIVIL APPLICATION NO. 17403 of 2013
With
R/LETTERS PATENT APPEAL NO. 773 of 2023
In
SPECIAL CIVIL APPLICATION NO. 17414 of 2013
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
In R/LETTERS PATENT APPEAL NO. 773 of 2023
In
SPECIAL CIVIL APPLICATION NO. 17414 of 2013
With
R/LETTERS PATENT APPEAL NO. 775 of 2023
In
SPECIAL CIVIL APPLICATION NO. 17433 of 2013
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
In R/LETTERS PATENT APPEAL NO. 775 of 2023
In
SPECIAL CIVIL APPLICATION NO. 17433 of 2013
With
R/LETTERS PATENT APPEAL NO. 776 of 2023
In
SPECIAL CIVIL APPLICATION NO. 17401 of 2013
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
In R/LETTERS PATENT APPEAL NO. 776 of 2023
In
SPECIAL CIVIL APPLICATION NO. 17401 of 2013
With
R/LETTERS PATENT APPEAL NO. 777 of 2023
In
SPECIAL CIVIL APPLICATION NO. 17412 of 2013
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
In R/LETTERS PATENT APPEAL NO. 777 of 2023
Page 4 of 30
Downloaded on : Tue Jul 04 20:40:52 IST 2023
C/LPA/741/2023 ORDER DATED: 03/07/2023
In
SPECIAL CIVIL APPLICATION NO. 17412 of 2013
With
R/LETTERS PATENT APPEAL NO. 778 of 2023
In
SPECIAL CIVIL APPLICATION NO. 17421 of 2013
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
In R/LETTERS PATENT APPEAL NO. 778 of 2023
In
SPECIAL CIVIL APPLICATION NO. 17421 of 2013
With
R/LETTERS PATENT APPEAL NO. 779 of 2023
In
SPECIAL CIVIL APPLICATION NO. 17420 of 2013
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
In R/LETTERS PATENT APPEAL NO. 779 of 2023
In
SPECIAL CIVIL APPLICATION NO. 17420 of 2013
With
R/LETTERS PATENT APPEAL NO. 780 of 2023
In
SPECIAL CIVIL APPLICATION NO. 17439 of 2013
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
In R/LETTERS PATENT APPEAL NO. 780 of 2023
In
SPECIAL CIVIL APPLICATION NO. 17439 of 2013
With
R/LETTERS PATENT APPEAL NO. 781 of 2023
In
SPECIAL CIVIL APPLICATION NO. 17430 of 2013
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
In R/LETTERS PATENT APPEAL NO. 781 of 2023
In
SPECIAL CIVIL APPLICATION NO. 17430 of 2013
With
R/LETTERS PATENT APPEAL NO. 782 of 2023
In
SPECIAL CIVIL APPLICATION NO. 17406 of 2013
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
In R/LETTERS PATENT APPEAL NO. 782 of 2023
In
SPECIAL CIVIL APPLICATION NO. 17406 of 2013
Page 5 of 30
Downloaded on : Tue Jul 04 20:40:52 IST 2023
C/LPA/741/2023 ORDER DATED: 03/07/2023
With
R/LETTERS PATENT APPEAL NO. 818 of 2023
In
SPECIAL CIVIL APPLICATION NO. 17400 of 2013
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
In R/LETTERS PATENT APPEAL NO. 818 of 2023
In
SPECIAL CIVIL APPLICATION NO. 17400 of 2013
With
R/LETTERS PATENT APPEAL NO. 819 of 2023
In
SPECIAL CIVIL APPLICATION NO. 17413 of 2013
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
In R/LETTERS PATENT APPEAL NO. 819 of 2023
In
SPECIAL CIVIL APPLICATION NO. 17413 of 2013
With
R/LETTERS PATENT APPEAL NO. 820 of 2023
In
SPECIAL CIVIL APPLICATION NO. 17402 of 2013
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
In R/LETTERS PATENT APPEAL NO. 820 of 2023
In
SPECIAL CIVIL APPLICATION NO. 17402 of 2013
With
R/LETTERS PATENT APPEAL NO. 821 of 2023
In
SPECIAL CIVIL APPLICATION NO. 17429 of 2013
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
In R/LETTERS PATENT APPEAL NO. 821 of 2023
In
SPECIAL CIVIL APPLICATION NO. 17429 of 2013
With
R/LETTERS PATENT APPEAL NO. 822 of 2023
In
SPECIAL CIVIL APPLICATION NO. 17440 of 2013
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
In R/LETTERS PATENT APPEAL NO. 822 of 2023
In
SPECIAL CIVIL APPLICATION NO. 17440 of 2013
With
R/LETTERS PATENT APPEAL NO. 823 of 2023
Page 6 of 30
Downloaded on : Tue Jul 04 20:40:52 IST 2023
C/LPA/741/2023 ORDER DATED: 03/07/2023
In
SPECIAL CIVIL APPLICATION NO. 17415 of 2013
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
In R/LETTERS PATENT APPEAL NO. 823 of 2023
In
SPECIAL CIVIL APPLICATION NO. 17415 of 2013
With
R/LETTERS PATENT APPEAL NO. 824 of 2023
In
SPECIAL CIVIL APPLICATION NO. 17410 of 2013
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
In R/LETTERS PATENT APPEAL NO. 824 of 2023
In
SPECIAL CIVIL APPLICATION NO. 17410 of 2013
With
R/LETTERS PATENT APPEAL NO. 825 of 2023
In
SPECIAL CIVIL APPLICATION NO. 17437 of 2013
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
In R/LETTERS PATENT APPEAL NO. 825 of 2023
In
SPECIAL CIVIL APPLICATION NO. 17437 of 2013
With
R/LETTERS PATENT APPEAL NO. 826 of 2023
In
SPECIAL CIVIL APPLICATION NO. 17408 of 2013
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
In R/LETTERS PATENT APPEAL NO. 826 of 2023
In
SPECIAL CIVIL APPLICATION NO. 17408 of 2013
==========================================================
DAHYABHAI M SOLANKI
Versus
STATE OF GUJARAT
==========================================================
Appearance:
MR. Y.N.RAVANI, ADVOCATE WITH MR G R MANAV(6064) for the
Appellant(s) No. 1
MR. KRUTIK PARIKH, ASSISTANT GOVERNMENT PLEADER/PP for the
Respondent(s) No. 1
GOVERNMENT PLEADER for the Respondent(s) No. 2
==========================================================
CORAM:HONOURABLE THE ACTING CHIEF JUSTICE MR.
Page 7 of 30
Downloaded on : Tue Jul 04 20:40:52 IST 2023
C/LPA/741/2023 ORDER DATED: 03/07/2023
JUSTICE A.J.DESAI
and
HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 03/07/2023
ORAL ORDER
(PER : HONOURABLE THE ACTING CHIEF JUSTICE MR. JUSTICE
A.J.DESAI)
1 Amendment allowed.
2 By way of present appeal under Clause 15 of the
Letters Patent, challenge is to the common oral
judgement dated 01.05.2023, by which, the judgement
and order passed by the City Civil Court, Ahmedabad, in
various civil appeals, exercising its powers under Sec.9 of
the Gujarat Public Premises (Eviction of Unauthorized
Occupants) Act, 1972, came to be dismissed confirming
the order passed by the authority evicting the petitioners
from the government land under the aforesaid provisions.
3 Learned Assistant Government Pleader Mr.Krutik
Parikh, has raised preliminary objection about
maintainability of the appeals, and therefore, this issue
has to be decided first at this stage.
C/LPA/741/2023 ORDER DATED: 03/07/2023
3.1 Mr.Krutik Parikh, learned AGP, would submit that
the officers authorized under the Public Premises Act has
taken out proceedings under the aforesaid Act and passed
an order of evicting the respective appellants having
found in unauthorized occupation of government
property. The said order was challenged by the appellants
by various appeals under Sec.9 of the Act. Appeals came
to be dismissed by respective orders. As per Sec.10, the
decision of the Appellate Court, being the Ahmedabad
City Civil Court, since the property is situated in the city
of Ahmedabad have become final, the appellants filed
captioned writ petition challenging the same. The said
decision was upheld by dismissing the petitions. He
would submit that under Clause 15 of the Letters Patent,
the appeal would be maintainable only if the learned
Single Judge has exercised or refused to exercise his
jurisdiction under Article 226 and / or 227 of the
Constitution of India. The present proceedings are purely
under Article 227 of the Constitution of India, and
therefore, the appeals are not maintainable. In support of
C/LPA/741/2023 ORDER DATED: 03/07/2023
his submissions, he has relied upon common oral order
dated 24.08.2022 passed by the Division Bench of this
Court rendered in Letters Patent Appeal No. 1680 of
2019 and allied appeals by taking us through paragraphs
9, 10 and 11 and the issues raised by the Division Bench
of this Court, he would submit that it has been held that
as such, the Letters Patent Appeals would not be
maintainable in such proceedings which arises from
provisions of judgement delivered by the Appellat Court
established under Sec.9 of the Public Premises Eviction
Act. He would submit that the Division Bench has relied
upon a decision of the Hon'ble Apex Court and has
categorically held that such appeal would not be
maintainable. He, therefore, would submit that the appeal
be dismissed only on this ground.
4 On the other hand, Mr.Y.N.Ravani, learned counsel
appearing with Mr.G.R.Manav, learned counsel for the
appellants would submit that the petitions filed by the
present appellants is not only under Article 227 of the
C/LPA/741/2023 ORDER DATED: 03/07/2023
Constitution but is also under Article 226 of the
Constitution of India. He would further submit that the
authority has passed the order without following the due
process of law, and therefore, the Appellate Authority can
exercise its power under Clause 15 of the Letters Patent.
He, therefore, would submit that the appeals be heard on
merits.
5 We have heard learned counsels appearing for the
respective parties. The fact remains that the orders came
to be passed by the authority under the Gujarat Public
Premises (Eviction of Unauthorized Occupants) Act, 1972,
by which the appellants were declared having occupied
the government properties illegally, and therefore, the
same were ordered to be evicted. The said decision was
challenged under Sec.9 of the Act. The appeals came to
be dismissed, wherein, all such contentions were raised.
The learned Single Judge has also examined the issue
arising from the judgement of City Civil Court at
Ahmedabad, though made by exercising powers under
C/LPA/741/2023 ORDER DATED: 03/07/2023
Sec.9 of the Gujarat Public Premises (Eviction of
Unauthorized Occupants) Act, 1972. The orders passed
by the Appellate Authority becomes final as per Sec.10,
and therefore, both the orders which were challenged by
the present appellants can be examined by this Court only
under Article 227 of the Constitution of India, would not
fall under Article 226 of the Constitution of India. All
these issues have been considered by the Division Bench.
The Division Bench raised following two issues in the
order and ultimately relied upon the order of the Hon'ble
Apex Court and held as under:
"RE : POINT NO.1 :
13. Clause 15 of the Letters Patent Act does not
provide an appeal against the judgment or order
passed by a learned Single Judge of this Court in a
petition under Article 227 and an appeal will lie if
the judgment or order is passed in petition under
Article 226. 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. The relief
prayed for and granted by the court is also a factor
that would indicate whether the petition was filed
C/LPA/741/2023 ORDER DATED: 03/07/2023
under Article 226 or 227. In case where it can be
said that the petition would fall both under Article
226 and Article 227, then it would be proper to
consider the petition as the one filed under Article
226 of the Constitution of India and in those cases
an appeal would lie under Section 15 of the Letters
Patent Appeal Act.
14. The proceeding under Article 226 is an original
proceeding and when it concerns civil right, it is an
original civil proceeding. The proceeding under
Article 227 is not an original proceeding. An intra-
court appeal does not lie against the judgment of a
learned Single Judge when the power of
superintendence is exercised by examining the order
of a subordinate court. The Hon'ble Apex Court in
LIC's case referred to supra, has held that an
appellate officer while exercising the power under
Section 9 of PP Act does not act as a persona
designata but in his capacity as a pre-existing
judicial authority in the District (being a District
Judge or Judicial Officer designated by the District
Judge, possessing essential qualification). Further,
the order passed by the District Judge under PP Act
is in the capacity of an appellate court and it would
part-take the order of the subordinate court, the
challenge thereto must ordinarily proceed only
under Article 227 of the Constitution of India and
not Article 226 thereof. Therefore, the Letters
Patent Appeal against the judgment of a learned
Single Judge would not be maintainable. It has been
held by the Hon'ble Apex Court in LIC's case as
under:
"57. Even though the respondents have invited our
attention to other decisions of High Courts and also
of Supreme Court which have analysed the
provisions of other legislations, it is unnecessary to
dilate on those decisions as we intend to apply the
principles underlying the decisions of three-Judge
C/LPA/741/2023 ORDER DATED: 03/07/2023
Bench of this Court in Thakur Das (supra), Asnew
Drums Pvt. Ltd. (supra), Maharashtra State
Financial Corporation (supra), Ram Chander
Aggarwal (supra) and Mukri Gopalan (supra), in
particular, to conclude that the Appellate Officer
referred to in Section 9 of the 1971 Act, is not a
persona designata but acts as a civil court.
58. In other words, the Appellate Officer while
exercising power under Section 9 of the 1971 Act,
does not act as a persona designata but in his
capacity as a pre existing judicial authority in the
district (being a District Judge or judicial officer
possessing essential qualification designated by the
District Judge). Being part of the district judiciary,
the judge acts as a Court and the order passed by
him will be an order of the Subordinate Court
against which remedy under Article 227 of the
Constitution of India can be availed on the matters
delineated for exercise of such jurisdiction.
59. Reverting to the facts of the present case, the
respondents had resorted to remedy of writ petition
under Article 226 and 227 of the Constitution of
India. In view of our conclusion that the order
passed by the District Judge (in this case, Judge,
Bombay City Civil Court at Mumbai) as an Appellate
Officer is an order of the Subordinate Court, the
challenge thereto must ordinarily proceed only
under Article 227 of the Constitution of India and
not under Article 226. Moreover, on a close scrutiny
of the decision of the learned Single Judge of the
Bombay High Court dated 14.08.2012 we have no
hesitation in taking the view that the true nature
and substance of the order of the learned Single
Judge was to exercise power under Article 227 of
the Constitution of India; and there is no indication
of Court having exercised powers under Article 226
of the Constitution of India as such. Indeed, the
learned Single Judge has opened the judgment by
C/LPA/741/2023 ORDER DATED: 03/07/2023
fairly noting the fact that the writ petition filed by
the respondents was under Articles 226 and 227 of
the Constitution of India. However, keeping in mind
the exposition of this Court in the case of Ram
Kishan Fauji (supra) wherein it has been explicated
that in determining whether an order of learned
Single Judge is in exercise of powers under Article
226 and 227 the vital factor is the nature of
jurisdiction invoked by a party and the true nature
and character of the order passed and the directions
issued by the learned Single Judge. In paragraph 40
of the reported decision, the Court adverting to its
earlier decision observed thus:
"40. ... ... Whether the learned Single Judge has
exercised the jurisdiction under Article 226 or
under Article 227 or both, would depend upon
various aspects. 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. It was reiterated that it
would depend upon the nature, contour and
character of the order and it will be the
obligation of the Division Bench hearing the
letters patent appeal to discern and decide
whether the order has been passed by the
learned Single Judge in exercise of jurisdiction
Under Article 226 or 227 of the Constitution or
both. The two-Judge Bench further clarified
that the Division Bench would also be required
to scrutinise whether the facts of the case
justify the assertions made in the petition to
invoke the jurisdiction under both the articles
and the relief prayed on that foundation. The
delineation with regard to necessary party not
being relevant in the present case, the said
aspect need not be adverted to."
Again in paragraphs 41 and 42, which may be
C/LPA/741/2023 ORDER DATED: 03/07/2023
useful for answering the matter in issue, the
Court observed thus:
"41. We have referred to these decisions only
to highlight that it is beyond any shadow of
doubt that the order of civil court can only be
challenged under Article 227 of the
Constitution and from such challenge, no intra-
court appeal would lie and in other cases, it will
depend upon the other factors as have been
enumerated therein.
42. At this stage, it is extremely necessary to
cull out the conclusions which are deducible
from the aforesaid pronouncements. They are:
42.1 An appeal shall lie from the judgment of a
Single Judge to a Division Bench of the High
Court if it is so permitted within the ambit and
sweep of the Letters Patent.
42.2 The power conferred on the High Court by
the Letters Patent can be abolished or curtailed
by the competent legislature by bringing
appropriate legislation.
42.3 A writ petition which assails the order of a
civil court in the High Court has to be
understood, in all circumstances, to be a
challenge under Article 227 of the Constitution
and determination by the High Court under the
said Article and, hence, no intra-court appeal is
entertainable.
42.4 The tenability of intra-court appeal will
depend upon the Bench adjudicating the lis as
to how it understands and appreciates the
order passed by the learned Single Judge.
There cannot be a straitjacket formula for the
same." (emphasis supplied)
C/LPA/741/2023 ORDER DATED: 03/07/2023
60. In the case of Radhey Shyam (supra) decided by
a three- Judge Bench, this Court after analyzing all
the earlier decisions on the point, restated the legal
position that in cases where judicial order violated
the fundamental right, the challenge thereto would
lie by way of an appeal or revision or under Article
227, and not by way of writ under Article 226 and
Article 32. The dictum in paragraphs 25, 27 and 29
of this decision is instructive. The same read thus:
"25. It is true that this Court has laid down that
technicalities associated with the prerogative
writs in England have no role to play under our
constitutional scheme. There is no parallel
system of King's Court in India and of all other
courts having limited jurisdiction subject to
supervision of King's Court. Courts are set up
under the Constitution or the laws. All courts in
the jurisdiction of a High Court are subordinate
to it and subject to its control and supervision
under Article 227. Writ jurisdiction is
constitutionally conferred on all High Courts.
Broad principles of writ jurisdiction followed in
England are applicable to India and a writ of
certiorari lies against patently erroneous or
without jurisdiction orders of Tribunals or
authorities or courts other than judicial courts.
There are no precedents in India for the High
Courts to issue writs to subordinate courts.
Control of working of subordinate courts in
dealing with their judicial orders is exercised
by way of appellate or revisional powers or
power of superintendence under Article 227.
Orders of civil court stand on different footing
from the orders of authorities or Tribunals or
courts other than judicial/civil courts. While
appellate or revisional jurisdiction is regulated
by statutes, power of superintendence under
Article 227 is constitutional. The expression
"inferior court" is not referable to judicial
C/LPA/741/2023 ORDER DATED: 03/07/2023
courts, as rightly observed in the referring
order in paras 26 and 27 quoted above.
26. ... ... ...
27. Thus, we are of the view that judicial orders
of civil courts are not amenable to a writ of
certiorari under Article 226. We are also in
agreement with the view of the referring Bench
that a writ of mandamus does not lie against a
private person not discharging any public duty.
Scope of Article 227 is different from Article
226.
28. ... ... ...
29. Accordingly, we answer the question
referred as follows:
29.1 Judicial orders of civil court are not
amenable to writ jurisdiction under Article 226
of of the Constitution;
29.2 Jurisdiction under Article 227 is distinct
from jurisdiction under Article 226.
29.3 Contrary view in Surya Dev Rai is
overruled." (emphasis supplied)
61. Similar view has been expressed in
Jogendrasinghji (supra). In this decision, it has been
held that the order passed by the Civil Court is
amenable to scrutiny only in exercise of jurisdiction
under Article 227 of the Constitution of India and no
intra court appeal is maintainable from the decision
of a Single Judge. In paragraph 30 of the reported
decision, the Court observed thus:
"30. From the aforesaid pronouncements, it is
graphically clear that maintainability of a
C/LPA/741/2023 ORDER DATED: 03/07/2023
letters patent appeal would depend upon the
pleadings in the writ petition, the nature and
character of the order passed by the learned
Single Judge, the type of directions issued
regard being had to the jurisdictional
perspectives in the constitutional context.
Barring the civil court, from which order as
held by the three-Judge Bench in Radhey
Shyam (supra) that a writ petition can lie only
under Article 227 of the Constitution, orders
from tribunals cannot always be regarded for
all purposes to be under Article 227 of the
Constitution. 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. We reiterate it
would depend upon the nature, contour and
character of the order and it will be the
obligation of the Division Bench hearing the
letters patent appeal to discern and decide
whether the order has been passed by the
learned Single Judge in exercise of jurisdiction
under Article 226 or 227 of the Constitution or
both. The Division Bench would also be
required to scrutinize whether the facts of the
case justify the assertions made in the petition
to invoke the jurisdiction under both the
articles and the relief prayed on that
foundation. Be it stated, one of the conclusions
recorded by the High Court in the impugned
judgment pertains to demand and payment of
court fees. We do not intend to comment on the
same as that would depend upon the rules
framed by the High Court."
C/LPA/741/2023 ORDER DATED: 03/07/2023
In the concluding part of the reported
judgment in paragraph 44, the Court observed
thus:
"44. We have stated in the beginning that three
issues arise despite the High Court framing
number of issues and answering it at various
levels. It is to be borne in mind how the
jurisdiction under the letters patent appeal is to
be exercised cannot exhaustively be stated. It
will depend upon the Bench adjudicating the lis
how it understands and appreciates the order
passed by the learned Single Judge. There
cannot be a straightjacket formula for the
same. Needless to say, the High Court while
exercising jurisdiction under Article 227 of the
Constitution has to be guided by the
parameters laid down by this Court and some
of the judgments that have been referred to in
Radhey Shyam."
62. In paragraph 45.2 of the same judgment, the
Court authoritatively concluded that an order
passed by a Civil Court is amenable to scrutiny of
the High Court only in exercise of jurisdiction under
Article 227 of the Constitution of India, which is
different from Article 226 of the Constitution and as
per the pronouncement in Radhey Shyam (supra), no
writ can be issued against the order passed by the
Civil Court and, therefore, no letters patent appeal
would be maintainable."
15. Keeping the aforesaid authoritative principles in
mind, when we turn our attention to the facts on
hand, it would clearly emerge therefrom that order
which came to be challenged by the petitioner
before the learned District Judge was an order dated
19.12.2005 passed by Estate Officer under Section
5(1) of the PP Act. The said appeal was preferred
C/LPA/741/2023 ORDER DATED: 03/07/2023
under Section 9 of the PP Act. The Judicial Officer
presiding over the court derives his designation
from the nomenclature of the court, even if the
appointment is made by designation of the Judicial
Officer. The appellate authority indicated in Section
9 of the PP Act is the court over which he presides,
discharging the functions under the relevant Act and
placed in the hierarchy of court for the purposes of
appeal. A persona designata is "a person who is
pointed out or described as an individual, as
opposed to a person ascertained as a member of a
class, or as filling a particular character". Persona
designata are "persons selected to act in their
private capacity and not in their capacity as Judges."
Same consideration applies also to a well-known
officer like the District Magistrate named by virtue
of his office and whose powers the Additional
District Magistrate can also exercise and who can
create other officers equal to himself for the purpose
of the Eviction Act vide - Central Talkies Limited vs.
Dwarika Prasad, reported in AIR 1961 606
(Paragraph9).
16. The Hon'ble Apex Court in LIC's case (supra)
having regard to the expression "appellate officer"
as defined in Section 9 of the PP Act has held is not
a persona designata but acts as a Civil Court. It has
been further held that in his capacity as a pre-
existing judicial authority in the district, he
exercises the power and not as a persona designata.
It has been further held that the Judge acts as a
court and the order passed by him will be an order
of the subordinate court against which remedy
under Article 227 of the Constitution of India can be
availed.
17. It is not doubt true that in the instant case, the
petition has been termed as one filed under Articles
226 and 227 of the Constitution. Mere mentioning of
the provision of Article 226 and without there being
C/LPA/741/2023 ORDER DATED: 03/07/2023
any fundamental and foundation facts specified,
which may indicate that original jurisdiction is
invoked would not alter the position. It is an
undisputed fact that Special Civil Application had
been filed in the year 2017 and the only prayer
which was sought for was for quashing of the order
dated 30.12.2016 passed in Regular Civil Suit No.1
of 2006 under Section 9 of the PP Act dismissing the
appeal and confirming the order of the Estate
Officer dated 19.12.2005 namely the order of
eviction. An interim order was passed in present
appeal on 21.10.2019 and it is only after the
opponent filed its appearance, an application for
seeking amendment came to be filed belatedly after
long laspse of time. It is only when present appeal is
taken up for hearing a prayer is made for
amendment application also being heard. A perusal
of the amendment application would indicate the
same is filed probably apprehending the issue of
maintainability of main appeal and as such has
sought an amendment at a much belated stage and
to fill up lacuna in the original petition which is
already disposed of long back. The subsequent filing
of the application for amendment or seeking for
additional prayer which was not before the learned
Single Judge can be allowed to be raised before the
appellate court on account of purported subsequent
events. Even otherwise, admittedly, the subsequent
developments took place during the pendency of the
proceedings before the learned Single Judge i.e.,
during 2017. Much reliance has been placed on the
additional affidavit to buttress the argument of same
having been raised at the earlier point of time. If it
were to be so nothing prevented the petitioner to
seek for amendment at that point of time itself.
Petitioner cannot be allowed to improve his case
stage by stage and step by step.
18. The order which was under challenge before the
learned Single Judge was the order of the Estate
C/LPA/741/2023 ORDER DATED: 03/07/2023
Officer passed under sub-section (2) of Section 5 as
well as the order passed by the appellate authority
namely the District Judge in exercise of the powers
under Section 9 of the PP Act. These two orders
having been assailed before the learned Single
Judge resulted in dismissal of the Special Civil
Application and thereby confirming the orders of the
original authority. Thus, order of the authorities
which was under scrutiny before the learned Single
Judge came up for consideration and the learned
Single Judge in exercise of the powers of
superintendence as indicated under Article 227 of
the Constitution of India exercised such power.
19. In that view of the matter, a writ petition which
questions the order of the Civil Court before the
High Court will have to be necessarily construed as
one challenged under Article 227 of the Constitution
of India and its determination thereof by the High
Court would be construed as passed under the
supervisory jurisdiction vested under Article 227.
Against such orders, intracourt appeal would not be
entertainable. It is the contention of Shri Mihir
Thakore, learend Senior Counsel appearing for the
writ applicant that in view of the observations made
by the Hon'ble Apex Court in LIC's case at
paragraph 59 to the effect "an order of the
subordinate court, the challenge thereto must
ordinarily proceed under Article 227 of the
Constitution of India" would lay emphasis ordinarily
and would defer if the facts obtained are different
like the one on hand, by contending that a
foundation had been laid by the petitioner before the
learned Single Judge itself, by raising a plea with
regard to hostile discrimination and as such the said
plea had also been referred to by the learned Single
Judge in paragraph 9, though at first blush looks
attractive, does not so at a slight deeper scrutiny
and we say so for the reasons more than one. Firstly,
the learned Single Judge himself in paragraph 9 has
C/LPA/741/2023 ORDER DATED: 03/07/2023
held as under:
"Moreover, the Court is not inclined to
undertake exercise of examining the facts of
such plot holders who have been given the
benefit of policy of 2017 and conclude finally
that the facts of such plot holders are identical
to the facts of the present case. More
particularly when, what is to be examined by
this Court is the challenge made by the
petitioner to the proceedings under the Public
Premises Act and the order passed therein."
20. Secondly, we notice that these facts were never
under examination, scrutiny, consideration or
adjudication before the learned Single Judge. What
was challenged and adjudicated by the learned
Single Judge was limited to the order dated
19.12.2005 passed by the competent authority
under Section 5(2) of the PP Act and its confirmation
thereof by the Additional District Judge in Regular
Civil Suit No.1 of 2006 by judgment and order dated
30.12.2016. In other words, there was nothing more
or nothing less which came to be adjudicated by the
learned Single Judge in Special Civil Application
No.1642 of 2017. These additional reasons fortify
our view of the fact that what was examined by the
learned Single Judge was the order passed by the
authorities and such power exercised by the learned
Single Judge was the power of superintendence
vested under Article 227 of the Constitution of India.
We are of the clear view that the order passed by
the learned Single Judge is that of the Civil Court
which exercised the appellate powers and said order
would be amenable to scrutiny only under exercise
of jurisdiction vested under Article 227 of the
Constitution of India and the pleadings in the writ
petition namely Special Civil Application in the
instant case leaves no manner of doubt and can
never be regarded or held that the learned Single
C/LPA/741/2023 ORDER DATED: 03/07/2023
Judge has exercised power under Article 226 of the
Constitution of India. By deep scrutiny of the order
of the learned Single Judge, it leaves no manner of
doubt that the power exercised by the learned
Single Judge is the power of superintendence under
Article 227 of the Constitution of India and mere
referring the petition as filed under Article 226
would not alter the manner in which the powers
have been exercised. A close perusal of the order
under challenge is clearly indicating that after due
examination of the issues raised, the discretion is
exercised under Article 227 of the Constitution of
India by the learned Single Judge and view taken is
the possible view which we are not inclined to
substitute with a different view. Reference may be
made to the decision of the Hon'ble Apex Court in
Management of Narendra and Company vs.
Workmen of Narendra and Company, reported in
(2016) 3 SCC 340, whereunder it has been held to
the following effect:
"5. Once the learned Single Judge having seen
the records had come to the conclusion that the
industry was not functioning after January
1995, there is no justification in entering a
different finding without any further material
before the Division Bench. The Appellate Bench
ought to have noticed that the statement of
MW 3 is itself part of the evidence before the
Labour Court. Be that as it may, in an intra-
court appeal, on a finding of fact, unless the
Appellate Bench reaches a conclusion that the
finding of the Single Bench is perverse, it shall
not disturb the same. Merely because another
view or a better view is possible, there should
be no interference with or disturbance of the
order passed by the Single Judge, unless both
sides agree for a fairer approach on relief."
21. Thus, contention of Shri Mihir Thakore, learned
C/LPA/741/2023 ORDER DATED: 03/07/2023
Senior Counsel appearing for the petitioner to the
effect that on account of subsequent plea having
been raised by way of a proposed amendment would
not alter the original situation and as such, plea
raised in that regard is not tenable and
consequently, we hold Point No.1 in the negative i.e.
in favour of the respondents and against the
appellant by holding intra-court appeal is not
maintainable against order dated 08.08.2019 passed
in Special Civil Application No.1642 of 2017.
RE : POINT NO.2 :
22. This application is filed for amendment of the
original pleadings namely to incorporate certain
facts in Special Civil Application No.1642 of 2017
and in support of the same, petitioner has sought for
incorporating prayer in paragraph 10AA. A perusal
of the averments made in the application would
indicate that apart from petitioner and other
allottees whose allotment had also been terminated
on account of breach of condition of letter of
allotment namely not making construction had
received different treatment namely they had been
given time to put up construction till 31.03.2018 and
applicants being similarly placed, the respondents
ought to have extended similar treatment to them
and they cannot be differentiated. It is further
contended that this aspect was highlighted by filing
an additional affidavit on 19.09.2017 and what is
now sought to be incorporated is only highlighting
this aspect or amplification of the existing pleadings
or incorporating the pleadings already putforwarded
in the Special Civil Application.
23. The reply affidavit has been filed contending that
the said application is filed belatedly and it is also
contended that the said issue cannot be adjudicated
in the present appeal. For the proposition that
belated application for amendment of the plaint is
C/LPA/741/2023 ORDER DATED: 03/07/2023
not permissible, the judgments of the Hon'ble
Supreme Court in the cases reported in 2019 (5)
SCC 360, 2019 (4) SCC 332 and 2019 (19) SCC 415
can be looked up. In the instant case, the Special
Civil Application has been filed challenging the
order dated 19.12.2005 which is an order passed
under Section 5(1) of the PP Act, ordering eviction
of all the petitioners from the premises/land as more
fully described in the schedule thereunder. The
order dated 30.12.2016 passed by the Additional
District Judge who confirmed the order of eviction
was also challenged in the said Special Civil
Application No.1642 of 2017. The petitioner has
sought to raise his case based on the pleas put-
forwarded and grounds urged therein namely by
contending that the said orders are illegal and
contrary to the statutory provisions of PP Act.
Primarily contending that it was a case of lease and
there was no termination of lease amongst other
grounds, what is sought to be put-forwarded by way
of the proposed amendment is to incorporate certain
subsequent events which had unfolded during the
pendency of the Special Civil Application. In fact, an
additional affidavit was filed on 19.09.2017
contending inter-alia that there was hostile
discrimination between petitioners and other
similarly placed persons. If it were to be so, it was
open for the petitioners to have sought for
appropriate amendment including the one now
sought for at that point of time itself. Petitioners
being in the full know-how of these facts which they
propose to bring in by way of amendment to the
Special Civil Application cannot plead ignorance of
these facts, inasmuch as the additional affidavit filed
would belie their stand. Knowing fully well the
development which had taken place and having
urged before the learned Single Judge and not being
able to persuade the learned Single Judge to
examine this aspect, they cannot be heard to
contend after three years from filing of such
C/LPA/741/2023 ORDER DATED: 03/07/2023
additional affidavit to re-agitate the said issue by
way of amendment, that too after the proceedings
before the learned Single Judge came to be
terminated or came to an end way back on
08.08.2019. To put it differently, through additional
facts the petitioners intended to bring it to the
notice of the learned Single Judge the proposed
amendment way back on 19.09.2017 and having
failed in their attempt, at least at the time of filing
the appeal, they could have sought for incorporation
of this plea they did not choose to do so for reasons
best known. On the other hand, they had the benefit
of an interim order passed in their favour on
21.10.2019 and it is thereafter on 24.02.2020, the
application in question has been filed which facts
were never possible to be adjudicated by the learned
Single Judge and as such, question of considering,
examining or adjudicating the same in an appeal
which is continuation of the original proceedings
would not arise.
24. It is needless to state that the subsequent events
are all giving rise for an independent different cause
of action. Petitioners would be at liberty to take
steps as they may choose to do so and without
expressing any opinion in that regard, we answer
Point No.2 against the appellants and in favour of
the respondents. In other words, we are of the view
that the application for amendment is liable to be
rejected and accordingly it stands rejected.
25. For reasons aforestated, we proceed to pass the
following
ORDER
(i) The intra-court appeal is held as not
maintainable and consequently, it stands
rejected as not maintainable. Civil Application
(for Stay) No.1 of 2019 also stands rejected.
C/LPA/741/2023 ORDER DATED: 03/07/2023
(ii) The application for amendment being Civil
Application No.1 of 2020 stands rejected.
(iii) We also make it explicitly clear that in the
event of petitioner intends to challenge the
order of the learned Single Judge dated
08.08.2019 passed in Special Civil Application
No.1642 of 2017, they are at liberty to do so
and all contentions on merits are kept open.
FURTHER ORDER
Mr.D.C.Dave, learned Senior Counsel seeks for
extension of the interim order which was granted by
this Court. We do not see any good ground to
entertain the said request particularly in the
background of this Court having already held that
the appeal itself is not maintainable. Hence, said
request stands rejected."
5.1 The order passed by the Division Bench has been
upheld by the Hon'ble Apex Court vide order dated
13.12.2022 rendered in Special Leave to Appeal (C) No(s)
21478-21479 of 2022.
6 Hence, we accept the submissions made by the
respondents. The appeals are not maintainable under
Clause 15 of the Letters Patent Appeal. Hence, all the
appeals are hereby dismissed, accordingly. As far as
disputes of amount sought for recovery is concerned, it
C/LPA/741/2023 ORDER DATED: 03/07/2023
would be open for the appellants to take appropriate
proceedings.
In view of dismissal of the main appeals, connected
civil applications also stands disposed of, accordingly.
(A.J.DESAI, ACJ)
(BIREN VAISHNAV, J)
BIMAL
