Dismissed

Ms Hindustan Auto Agency through One of Its Partner Gopal Kumar Lodha v. Steel Authority of India Ltd. through Its Chief Executive Officer

Jharkhand HC8 Sept 2021LPA/196/2021

Case brief

AI extract

What is this about?

The appellant filed an LPA against the Single Judge's refusal to interfere with a District Judge's order under the Public Premises Act. The Division Bench held the appeal not maintainable as the underlying writ was effectively challenged under Article 227.

What did the court decide?

The Letters Patent Appeal was dismissed on the ground of non-maintainability without expressing opinion on the merits of the underlying dispute.

Ms Hindustan Auto Agency through One of Its… — Civil Procedure and Limitation | Jharkhand HC (2021)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI L.P.A. No.196 of 2021

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M/s Hindustan Auto Agency, a partnership firm, having its registered office at Plot No.R-2, City Centre, Sector-IV, P.O. & P.S. Sector-IV, Bokaro Steel City, District Bokaro, through one of its Partner Gopal Kumar Lodha, son of Late C.P.Lodha, aged about 57 years, resident of Hindustan Auto Agency, Near Old Bus Stand, Chas, P.O. & P.S. Chas, District Bokaro.

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Versus

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Steel Authority of India Ltd., Bokaro Steel Plant, having its office at Administrative Building, Bokaro Steel City, P.O. & P.S. Bokaro, District Bokaro, through its Chief Executive Officer, having its office at Administrative Building, Bokaro Steel City, P.O. & P.S. Bokaro, District Bokaro.

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CORAM : HON’BLE THE CHIEF JUSTICE HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD

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For the Appellant : Mr. Prashant Kr. Shahi, Sr. Advocate Mr. Rahul Kumar Gupta, Advocate Mr. Vibhor Mayank, Advocate

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For the Respondent : Mr. Piyush Chitresh, Advocate

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ORAL JUDGMENT Order No. 03 : Dated 8^th September, 2021

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With the consent of the parties, hearing of the matter has been done through video conferencing and there is no complaint whatsoever regarding audio and/or video quality. 2. The instant appeal preferred under Clause 10 of the Letters Patent is directed against the order/judgment dated 02.07.2021 passed by learned Single Judge of this Court in W.P.(C) No.1338 of 2021 whereby and whereunder the

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learned Single Judge has refused to interfere with the judgment dated 03.03.2021 passed by learned District Judge-III, Bokaro in Civil Miscellaneous Appeal No.15 of 2019 an appeal preferred under the provision of Section 9 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (hereinafter referred to as the Act, 1971), by dismissing the writ petition.

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3. The office has pointed out the issue of maintainability as per the stamp report dated 09.08.2021 based upon an order passed by this Court in L.P.A. No. 312 of 2004 with L.P.A. No. 393 of 2004.

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4. Mr. P.K.Shahi, learned senior counsel appearing for the writ petitioner-appellant, assisted by Mr. Vibhor Mayank, has submitted that the instant appeal is maintainable as the writ petition was preferred by invoking jurisdiction conferred to this Court under Article 226 and 227 of the Constitution of India and since the learned Single Judge has passed the order in exercise of power conferred under Article 226 and 227 of the Constitution of India, therefore, the Letters Patent Appeal would lie under the provision of Clause10 of the Letters Patent and in view thereof. It has been submitted that the issue of maintainability as has been pointed out by the office vide stamp report dated 09.08.2021 may be over-ruled and the instant appeal may be heard on its merit.

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5. Per contra , Mr. Piyush Chitresh, learned counsel appearing for the respondent Bokaro Steel Limited, has seriously objected to such submission and vehemently argued about non-maintainability of the instant intra-court appeal in view of the order passed by the Full Bench of this Court in L.P.A. No. 312 of 2004 with L.P.A. No. 393 of 2004 wherein an order was passed on 02.12.2005 as also by this Bench in L.P.A. No. 524 of 2018 on 12.10.2020.

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He further submits that the law has already been laid down by Hon'ble Apex Court in Life Insurance Corporation of India v. Nandini J. Shah and Others, [(2018) 15 SCC 356] wherein it has been laid down that the order passed by the Judicial Officer in exercise of power conferred under Section 9 of the Act, 1971 being a judicial order even if it has been assailed under Article 226 of the Constitution of India, it will be treated to be a proceeding under Article 227 of the Constitution of India and in that view of the matter, no intracourt appeal will lie.

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6. This Court has heard the learned counsel for the parties on the point of maintainability and gone across the judgment passed by Full Bench of this Court vide order dated 02.12.2005 passed in L.P.A. No. 312 of 2004 with L.P.A. No. 393 of 2004, which is part of the record, whereby and whereunder the Full Bench of this Court has laid down at paragraphs 12, 13 and 14 as hereunder :-

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“12. From the decisions of the Supreme Court aforementioned, it is clear that if a Single Judge exercises jurisdiction under Article 226 as well as both under Articles 226 and 227 of the Constitution of India, against such judgment, letters patent appeal under clause-10 shall lie before this Court. On the other hand, if learned Single Judge exercises his jurisdiction only under Article 227 of the Constitution, letters patent appeal under clause-10 would not be maintainable against such judgment before a Division Bench of this Court.

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From the writ petition, W.P.(C) No.1341 of 2004 preferred by appellant “Swapan Kumar Bandopadhyay” (LPA 312/2004), it is evident that the said application was preferred only under Article 227 of the Constitution of India, whereas the appellant “Doman Mahato” (LPA 393/2004) had filed writ petition, W.P.(C) No.3612 of 2003 under Article 226 of Constitution, but the learned Single Judge passed the impugned order in exercise of his jurisdiction under Article 227 of Constitution of India.

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In the circumstances, both the appeals filed under Clause-10 of the Letter Patent against the order(s) passed under Article 227 of Constitution are not maintainable. The question, as raised in these appeals is, accordingly, answered in negative and against the appellants. Both the appeals are, accordingly, dismissed. However, in the facts and circumstances, there shall be no order, as to costs.”

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Thus, it is evident that the Full Bench of this Court has

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answered the issue by holding therein that the appeal filed under Clause-10 of the Letters Patent against the order passed under Article 227 of Constitution of India are not maintainable.

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It further transpires from the aforesaid order that the

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issue of maintainability of appeal has been dealt with in a case wherein the order passed under Section 9 of the Act, 1971 was the subject matter.

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We have also gone across the judgment rendered by Hon'ble Apex Court in Life Insurance Corporation of India v. Nandini J. Shah and Others (Supra) wherein the Hon'ble Apex Court has been pleased to hold at paragraphs 58 and 59 that 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. The relevant passages of the aforesaid judgment as under paragraphs 58 and 59 read as hereunder :-

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“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

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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 Articles 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, the 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 14-8-2012 [ Nandini J. Shah v. LIC , WP (C) No. 4337 of 2012, order dated 14-8-2012 (Bom)] 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 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 Ram Kishan Fauji [ Ram Kishan Fauji v. State of Haryana , (2017) 5 SCC 533 : (2017) 2 SCC (Cri) 581] wherein it has been explicated that in determining whether an order of the learned Single Judge is in exercise of powers under Article 226 or 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 para 40 of the reported decision, the Court adverting to its earlier decision observed thus : (SCC pp. 557-58)

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“ 40 . … Whether the learned Single Judge has exercised the jurisdiction under Article 226 or

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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.”

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Again in paras 41 and 42, which may be useful for answering the matter in issue, the Court observed thus : ( Ram Kishan Fauji case [ Ram Kishan Fauji v. State of Haryana , (2017) 5 SCC 533 : (2017) 2 SCC (Cri) 581] , SCC p. 558)

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“ 41 . We have referred to these decisions only to highlight that it is beyond any shadow of doubt that the order of the 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 .

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42 . At this stage, it is extremely necessary to cull out the conclusions which are deducible from the aforesaid pronouncements. They are:

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42.1 . An appeal shall lie from the judgment of a Single Judge to a Division Bench of the High Court

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if it is so permitted within the ambit and sweep of the Letters Patent.

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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.

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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 .

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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 .”

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(emphasis supplied)

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So far as the argument advanced by learned senior counsel appearing for the writ petitioner that the writ petition has been filed under Article 226 and 227 of the Constitution of India, therefore, the judgment rendered by Hon'ble Apex Court in Life Insurance Corporation of India v. Nandini J. Shah and Others (Supra) will not be applicable in the facts of the given case is concerned, but the same issue has been considered by Hon'ble Apex Court in Jogendrasinhji Vijaysinghji v. State

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of Gujarat and Others [(2015) 9 SCC 1] wherein it has been laid down at paragraph 30 that the maintainability of a 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

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issued regard being had to the jurisdictional perspectives in the constitutional context. 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, would depend upon various aspects that have been emphasised in the aforestated authorities of this Court. It has been held therein that the nature, contour and character of the order would have to be seen 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 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. Paragraph 30 of the aforesaid judgment is quoted hereunder :-

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“30. From the aforesaid pronouncements, it is graphically clear that maintainability of a 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 threeJudge Bench in Radhey Shyam [(2015) 5 SCC 423]

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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 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. 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.”

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It has further been held at paragraph 45 to the effect that whether a letters patent appeal would lie against the order passed by the learned Single Judge that has travelled to him from the other tribunals or authorities, would depend upon many a facets. The court fee payable on a petition to make it under Article 226 or Article 227 or both, would

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depend upon the rules framed by the High Court. Further, the order passed by the civil court is only amenable to be scrutinised by the High Court in exercise of jurisdiction under Article 227 of the Constitution of India which is different from Article 226 of the Constitution. As per the pronouncement in Radhey Shyam [(2015) 5 SCC 423], no writ can be issued against the order passed by the civil court and, therefore, thus, no letters patent appeal would lie. Paragraph 45 of the aforesaid judgment is quoted hereunder :-

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“45. In view of the aforesaid analysis, we proceed to summarise our conclusions as follows:

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45.1. Whether a letters patent appeal would lie against the order passed by the learned Single Judge that has travelled to him from the other tribunals or authorities, would depend upon many a facet. The court fee payable on a petition to make it under Article 226 or Article 227 or both, would depend upon the rules framed by the High Court.

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45.2. The order passed by the civil court is only amenable to be scrutinised by the High Court 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 [(2015) 5 SCC 423] , no writ can be issued against the order passed by the civil court and, therefore, no letters patent appeal would be maintainable.

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45.3. The writ petition can be held to be not maintainable if a tribunal or authority that is required to defend the impugned order has not been arrayed as a party, as it is a necessary party.

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45.4. The tribunal being or not being party in a writ petition is not determinative of the maintainability of a letters patent appeal.”

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In the given facts of the case, the order passed by the Estate Officer under the Act, 1971 has been questioned by preferring a statutory appeal under Section 9 of the Act, 1971. The appellate authority, exercising the power under Section 9 of the Act, 1971, has passed the order in the capacity of the Judicial Officer and as such, as per the judgment rendered by the Hon'ble Apex Court in Life Insurance Corporation of India v. Nandini J. Shah and Others (Supra), the order passed under Section 9 of the Act, 1971 is in the nature of judicial order, therefore, the writ will be treated to have been filed under Article 227 of the Constitution of India and in that view of the matter, the intracourt appeal would not be maintainable.

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7. This Court, after taking into consideration the judgment rendered by the Full Bench of this Court in L.P.A. No. 312 of 2004 with L.P.A. No. 393 of 2004 and by this Bench in L.P.A. No. 524 of 2018 as also the judgment rendered by the Hon'ble Apex Court in Life Insurance Corporation of India

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v. Nandini J. Shah and Others (Supra), is of the view that,

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though the writ petition has been filed under Article 226 and 227 of the Constitution of India assailing the order passed by the learned District Judge-III, Bokaro in exercise of

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power conferred under Section 9 of the Act, 1971, it has to be treated to have been filed under Article 227 of the Constitution of India and, therefore, on the basis of the ratio laid down by the Hon’ble Apex Court in the cases referred above, the instant appeal is not maintainable.

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8. Accordingly, the appeal is dismissed on the point of maintainability.

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9. Since we have not entered into the merit of the matter, and as such, this order will not come in the way of appellant in seeking remedy before the appropriate forum which would be available in law.

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10. Pending interlocutory application, if any, also stands disposed of.

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(Dr. Ravi Ranjan, C.J.)

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(Sujit Narayan Prasad, J.)

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Birendra/ A.F.R.

Ms Hindustan Auto Agency through One of Its Partner Gopal Kumar Lodha v. Steel Authority of India Ltd. through Its Chief Executive Officer

Case brief

What is this about?

What did the court decide?

Ms Hindustan Auto Agency through One of Its Partner Gopal Kumar Lodha v. Steel Authority of India Ltd. through Its Chief Executive Officer

Case brief

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