Orissa High Court
Hazi Md.Ayub Khan And Others vs Collector on 4 April, 2025
Author: B. P. Routray
Bench: B. P. Routray
Signature Not Verified
Digitally Signed
Signed by: CHITTA RANJAN BISWAL
Designation: A.R.-Cum-Sr.Secretary
Reason: Authentication
Location: Orissa High Court, Cuttack
Date: 05-Apr-2025 15:27:24
IN THE HIGH COURT OF ORISSA AT CUTTACK
WA No.2170 of 2023
Hazi Md.Ayub Khan and others .... Appellants
Mr.P.K.Nayak, Advocate
-versus-
Collector, Bolangir and others .... Respondents
Mr.S.Das, AGA
CORAM:
HON'BLE THE CHIEF JUSTICE
AND
HON'BLE MR. JUSTICE B. P. ROUTRAY
ORDER
4.4.2025
Order No.
4. 1. Heard Mr.Nayak, learned counsel for the Appellants
and Mr.Das, learned Additional Government Advocate for the
Respondents.
2. The writ appeal is at the behest of the Appellants
assailing the judgment and order dated 14th December 2022
passed by the Single Bench exercising the power of
Superintendence enshrined under Article 227 of the Constitution
of India.
3. The seminal point involved in the instant appeal relates
to its maintainability in view of an embargo created under
Signed by: CHITTA RANJAN BISWAL
Designation: A.R.-Cum-Sr.Secretary
Reason: Authentication
Location: Orissa High Court, Cuttack
Date: 05-Apr-2025 15:27:24
Clause-10 of the Letters Patent of this High Court. The aforesaid
provision is reproduced as under:
"10. And We do further ordain that an appeal shall lie to
the said High Court of Judicature at Patna 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 this said High Court, and 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 107 of the
Government of India Act, or in the exercise of criminal
jurisdiction) of one Judge of the said High Court or one Judge of
any Division Court, pursuant to Section 108 of 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 said High Court or one Judge of any
Division Court, pursuant to Section 108 of the Government of
India Act, made [on 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 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."
4. It is manifest from the bare reading of the aforesaid
provision that the appeal under Clause 10 of the said Letters
Patent is incompetent against an order passed by the High Court
exercising the power of superintendence under Article 227 of the
Constitution of India. However, because of the divergent views
having taken in this regard, the said issue was referred to a
Special Bench in Laba Kumar Rath vrs. State of Odisha (W.A.
No.2047 of 2024) and is answered in the following:
Signed by: CHITTA RANJAN BISWAL
Designation: A.R.-Cum-Sr.Secretary
Reason: Authentication
Location: Orissa High Court, Cuttack
Date: 05-Apr-2025 15:27:24
"33. In view of the above noted discussions, we answer
the questions referred to the Full Bench as under:
(i) An intra-court appeal shall not lie against a
judgment/order passed by a learned Single Judge of this Court
on an appeal under Section 24-C of the Odisha Education Act,
1969 which is a Special Act.
(ii) We respectfully disagree with the view taken by the
Division Bench of this Court in case of Prasanna Kumar Sahu
(supra) which is not a legally correct view on the point of
maintainability of an intra-court appeal. The Division Bench
order in case of Arabinda Panda (supra) (dated 29.09.2021
passed in W.A. No.143 of 2016) does not indicate that a writ
appeal is maintainable against an order passed by a learned
Single Judge of this Court exercising appellate power under a
Special Act.
(iii) We accordingly hold that an intra-court appeal shall
not lie against an order passed by a learned Single Judge of this
Court exercising appellate jurisdiction under a Special Act."
5. In view of the authoritative pronouncement by the
Special Bench in the above noted decision, the instant appeal is
not maintainable. The same is dismissed as such. However,
dismissal of the appeal on technical ground shall not prevent the
Appellants to exhaust the other remedy, if available, in law.
(Harish Tandon)
Chief Justice
( B.P. Routray)
Judge
C.R.Biswal/M.K.Panda
