The High Court of Gujarat has distinguished between the right of an “intra-judicial appeal” under Section 226 and Section 227 of the Constitution and held that an intra-judicial appeal cannot be formed against the judgment of a single judge when supervisory power is exercised by review of the order of the lower court.
In other words, Section 15 of the Letters Patent Act does not permit an appeal against the order made by a single judge of the Court in a petition under Section 227.
Chief Justice Aravind Kumar and Justice Ashutosh Joshi declared:
“When a petition is filed under both Sections 226 and 227 of the Constitution of India, it will be necessary to consider whether the issue raised in the petition was first submitted to the High Court. If the challenge in the petition relates to matters already decided by the lower court or tribunal, then the supervising jurisdiction of the High Court should be deemed to have been invoked and not the original jurisdiction.“
“The mere mention of the provision of Section 226 and without specifying any fundamental and fundamental fact which could indicate that original jurisdiction is invoked, would not change the situation.“
This intra-judicial appeal was filed under Sections 226 and 227 and challenged the decision of the Single High Court Judge in an SCA which upheld the order of the Additional District Judge in a civil action. The lawsuit concerned the provisions of the Public Premises Act that the claimant had not started construction on the land allocated to him even after 6 years. Therefore, the claimant was required to remove the wheat stored on the land. The estate agent subsequently also initiated eviction proceedings.
Here, the admissibility of the appeal was challenged by the respondents on the ground that the order issued by the civil court had already been challenged before the single judge under article 227. On the other hand, the petitioner asserted that the The single judge’s order was not adopted under article 227 alone, but also under article 226.
Addressing this contention, the bench explained that the order made by the District Judge under the PP Act was within the capacity of the Court of Appeal and therefore the challenge before the Single Judge would continue under of section 227 only and not of section 226. Therefore, the LPA was not maintainable. We relied on Life Insurance Company of India vs. Nandini J. Shah, case where the Supreme Court ruled:
“Whether the learned single judge exercised jurisdiction under section 226 or section 227 or both, needless to stress, will depend on various aspects which have been pointed out in the precedents of this Court. . There may be orders made by the learned single judge. which can be interpreted as an order under the two articles in a composite way, since they can coexist, coincide and overlap.”
Taking these precedents into account, the High Court noted that initially the order was made by the Estate Agent pursuant to Section 5(1) of the PP Act. The appeal was later filed against U/S Order 9 of the Act. Referring to the LIC case, the High Court found that the “Appeals Officer” as u/s 9 of the PP Act was not designated person (persons chosen to act in a private capacity and not as judges) but rather a civil court since it acts as a court and the order made by it constitutes an order of the subordinate court. Against such an order, the recourse provided for in art 227 is found. Thus, the supervisory power under section 227 was exercised by the single judge and the mere filing of the motion under section 226 would not alter the manner in which the powers were exercised.
The Appellants had also filed a request to amend the original pleadings in order to incorporate certain facts into the SCA. However, this was not cleared by the High Court due to wanton delay.
Consequently, the appeal was rejected as inadmissible even though the possibility of contesting the order of the single judge had remained open.
Case No: C/LPA/1680/2019
Case title: VITHAL BOGRA SHETTY v BOARD OF DIRECTORS
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