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LPA/299/2009 5/ 5 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No. 299 of 2009
In
SPECIAL
CIVIL APPLICATION No. 11040 of 2008
with
CIVIL
APPLIATION NO.2687 OF 2009
For
Approval and Signature:
HONOURABLE
MR.JUSTICE BHAGWATI PRASAD
HONOURABLE
MR.JUSTICE BANKIM.N.MEHTA
======================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
======================================
PORBANDAR
DISTRICT PANCHAYAT & ANOTHER
Versus
BHARAT
J KHODA
======================================
Appearance :
MR
HS MUNSHAW for the Appellants
MR VM PANCHOLI for the
respondent
======================================
CORAM
:
HONOURABLE
MR.JUSTICE BHAGWATI PRASAD
and
HONOURABLE
MR.JUSTICE BANKIM.N.MEHTA
Date
: 13/01/2010
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE BHAGWATI PRASAD)
This
appeal is directed against the order dated 5th September
2008 passed by the learned Single Judge in Special Civil Application
No.11040 of 2008 whereby he rejected the petition filed by the
appellant Porbandar District Panchayat.
The
appellant Porbandar District Panchayat filed the writ petition
challenging the order dated 1st August 2008 passed by the
District Court in Civil Misc. Application No.1 of 2008.
Heard
the learned counsel for the parties. The learned counsel for the
appellant was put a candid question by us as to how in a matter where
against an order passed by the civil court is challenged before the
learned Single Judge of this Court under Article 226/227 of the
Constitution of India and the learned Single Judge has not
entertained the petition, an appeal under Clause 15 of the Letters
Patent is maintainable. To support his contention, the learned
counsel for the appellant has not been able to point out a single
Supreme Court decision which could show to us that LPA is
maintainable against an order which is basically passed by a civil
court and which was challenged before the learned Single Judge under
Article 226/227 of the Constitution of India. The cases which were
brought were the cases in which the orders were passed by the Labour
Court, Industrial Tribunal and Central Administrative Tribunal, but
he could not point out a single case where the case was in relation
to a Code of Civil Procedure.
On
the contrary, learned counsel for the respondent has placed reliance
in the case of Kamal Kumar Dutta & Another v. Ruby General
Hospital Limited & Ors.,
(2006) 7 SCC 613 the Honourable Supreme Court has held in paragraphs
22 and 23 as under:-
22. So
far as the general proposition of law is concerned that the appeal is
a vested right there is no quarrel with the proposition but it is
clarified that such right can be taken away by a subsequent enactment
either expressly or by necessary intendment. The Parliament while
amending section 100A of the Code of Civil Procedure, by amending
Act 22 of 2002 with effect from 1.7.2002, took away the Letters
Patent power of the High Court in the matter of appeal against an
order of learned single Judge to the Division Bench. Section 100A
of the Code of Civil Procedure reads as follows:
”
100A. No further appeal in certain cases.-
Notwithstanding
anything contained in any Letters Patent for any High Court or in
any other instrument having the force of law or in any other law for
the time being in force, where any appeal from an original or
appellate decree or order is heard and decided by a single Judge of a
High Court, no further appeal shall lie from the judgment and decree
of such single Judge.”
23. Therefore,
where appeal has been decided from an original order by a single
Judge, no further appeal has been provided and that power which used
to be there under the Letters Patent of the High Court has been
subsequently withdrawn. The present order which has been passed by
the CLB and against that appeal has been provided before the High
Court under Section 10F of the Act, that is an appeal from the
original order. Then in that case no further Letters patent appeal
shall lie to the Division Bench of the same High Court. This
amendment has taken away the power of the Letters Patent in the
matter where learned single Judge hears an appeal from the original
order. Original order in the present
case was passed by the CLB exercising the power under Sections 397
and 398 of the Act and appeal has been preferred under section 10F of
the Act before the High Court. Learned single Judge having passed an
order, no further appeal will lie as the Parliament in its wisdom
has taken away its power. Learned counsel for the respondents
invited our attention to a letter from the then Law Minister. That
letter cannot override the statutory provision. When the statute is
very clear, whatever statement by the Law Minister made in the floor
of the House, cannot change the words and intendment which is borne
out from the words. The letter of the Law Minister cannot be read to
interpret the provisions of Section 100A. The intendment of the
Legislature is more than clear in the words and the same has to be
given its natural meaning and cannot be subject to any statement made
by the Law Minister in any communication. The words speak for itself.
It does not require any further interpretation by any statement
made in any manner. Therefore, the power of the High Court in
exercising Letters patent in a matter where a single Judge has
decided the appeal from original order, has been taken away and it
cannot be invoked in the present context. There is no two opinion in
the matter that when the CLB exercises its power under Section 397
& 398 of the Act, it exercised its quasi-judicial power as
original authority. It may not be a court but it has all the
trapping of a court. Therefore, the CLB while exercising its
original jurisdiction under Sections 397 & 398 of the Act passed
the order and against that order appeal lies to the learned single
Judge of the High Court and thereafter no further appeal could be
filed.
Therefore,
instead of hearing the arguments on the stay application, we are of
the considered opinion that the Letters Patent Appeal itself is not
maintainable. Therefore, no interference is called for in the
order passed by the learned Single Judge. Therefore, Letters Patent
Appeal is dismissed.
Since
the main appeal itself is dismissed, Civil Application No.2687 of
2009 does not survive and the same is disposed of accordingly.
Interim relief granted earlier is vacated.
(Bhagwati
Prasad, J.)
(Bankim
N Mehta, J.)
*mohd
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