Mohinder Verma
JAMMU, Nov 28: Division Bench of State High Court comprising Chief Justice M M Kumar and Justice Tashi Rabstan has decided an important question of law by holding that no appeal under Clause-12 of the Letters Patent Rules would be maintainable against an order passed by the Single Judge while exercising supervisory jurisdiction under Article 227 of the Indian Constitution read with Section 104 of Jammu and Kashmir Constitution.
The legal issue whether an order passed by the Single Judge under Section 227 of the Indian Constitution read with Section 104 of Jammu and Kashmir Constitution can be challenged before Division Bench emerged in Letters Patent Appeal (LPA) titled Sansar Chand Versus Som Dutt filed under Clause-12 of the Letters Patient Rules.
With the settlement of this legal issue in the light of various Supreme Court judgments, the litigants will have to approach the Supreme Court by filing an SLP as appeal before the Division Bench has been held not maintainable. This judgment will go a long way in reducing the pendency of the litigations in the High Court as the present pendency in both the wings of State High Court touches approximately one lakh.
In a suit for declaration-cum-permanent prohibitory injunction, the court of Munsiff Akhnoor, on December 31, 2010, passed an interim order of maintaining status quo on an issue between two parties and this order was set aside by the 1st Additional District Judge on May 11, 2013. When the order of 1st Additional District Judge was challenged before the Single Judge, the latter vide order dated July 4, 2014 upheld the order passed by 1st Additional District judge.
However, the order of Single Judge was challenged before the Division Bench by way of Letters Patent Appeal under Clause-12 of the Letter Patent Rules. This LPA was opposed by Advocate Vijay Gupta, counsel for the respondent by submitting that the appeal under Clause-XII of the Letters Patent is not maintainable as it emerges from an order of Single Judge passed under supervisory jurisdiction. He placed reliance on a judgment of the Full Bench of Gujrat High Court rendered in the case of Gujrat State Road Transport Corporation Versus Firoze M Mogal and Another.
On the other side, Advocate O P Thakur, counsel for the appellant, submitted that the basic function of exercising supervisory jurisdiction by the High Court under Article 227 is to correct errors of jurisdiction. “If the courts below have exceeded jurisdiction or refused to exercise jurisdiction vested in it or there is grave illegality committed then the High Court may issue an appropriate writ”, he argued.
“If these principles are applied then the refusal to exercise jurisdiction by the Single Judge has resulted in passing of an order on original side, which would be amenable to Letter Patient Appeal”, Advocate Thakur added.
In the detailed order passed after considering various judgments of Supreme Court, Division Bench observed, “the order of the Single Judge impugned in this appeal by no stretch of imagination can be regarded as the one passed under Article 226 of the Constitution of India read with Section 103 of the Constitution of Jammu and Kashmir”.
“The Supreme Court in categorical terms has opined in numerous judgments that Letters Patent Appeal would not be maintainable against an order passed by the Single Judge in exercise of power of superintendence under Article 227”, DB said, adding “in the case of Shalini Shyam Shetty, the Judges of the Supreme Court took the view that jurisdiction under Article 227 is neither original nor it is appellate”.
The judgment further reads: “In the cases where the High Court exercises jurisdiction under Article 227, it is entirely discretionary and it cannot be claimed as a matter of right and no appeal would be maintainable from an order passed by a Single Judge of a High Court. The remedy is available in respect of an order passed by the Writ Court under Article 226 of the Constitution”.
“The judgment of J&K High Court DB rendered in the case of Sudershana Gupta and Another Versus Girdhari Lal on which reliance has been placed by the counsel for the appellant cannot have a binding force and the authoritative pronouncements made by the Apex Court in Kesho Ram case have binding effect under Article 141 of the Constitution of India as it is a law declared by the Supreme Court”, the DB said.
Accordingly, the DB dismissed the appeal for not being maintainable.
Follow our WhatsApp channel