SITABAI SHANTARAM TALAWNEKAR Vs. CUSTODIAN OF EVACUEE PROPERTY

JUDGEMENT

(1.) In this Letters Patent Appeal preferred against the order of dismissal of the writ petition No. 142/2009 by the Single Judge of this Bench, an exception is taken to its maintainability in view of the judgment of the Division Bench in L.P.A. No. 15/2000 delivered on 22.06.2009. The learned Advocate Agni for the contesting respondent No. 2 Vassudev Talaunekar raised such preliminary objection at the stage of admission of this appeal on the ground that this Division Bench after considering all the relevant provisions of law had clearly reached the conclusion that the Letters Patent Appeals are not maintainable before this Bench of High Court at Bombay at Panaji; and now this bench cannot sit as an Appellate Court over the orders passed earlier regarding non-maintainability of the Letters Patent Appeals in order to take a view contrary thereof. She pointed out from the judgment in L.P.A. No. 15/2000 the elaborate discussion on the relevant provisions of law entered into by this bench while reaching its conclusions regarding the non-maintainability of the Letters Patent Appeals. She further pointed out from the judgment in L.P.A. No. 10/2009 passed by the same Division Bench on 29.06.2009 as to how the said Division Bench differed from earlier contrary view taken by the Division Bench of this Court in judgment reported at , Cadar Construction v. Tara Tiles., 1984 2 BCR 530 To further her submissions, she relied on the judgment reported in Panujumal Hassomal Advani v. Harpal Sing Sawhney and Ors.,1975 AIR(Bom)120

(2.) The learned Advocate Mulgaonkar for the appellants submitted that the jurisdiction of High Court of Bombay including the jurisdiction to entertain Letters Patent Appeals, without any dilution, was extended to Goa, Daman and Diu by virtue of Section 3 of the High Court at Bombay (extension of jurisdiction to Goa, Daman and Diu) Act 1981 (hereinafter shortly referred to as the Act of 1981); and Section 4 of the said Act of 1981 had conferred on the High Court of Bombay the additional powers which were exercisable by the Tribunal de Relacao. Section 8(1) of the Goa, Daman and Diu (Judicial Commissioner's Court) Regulation 1963, he submitted made the Court of the Judicial Commissioner as the Highest Civil and Criminal Court of appeal and revision in Goa, Daman and Diu with all such jurisdiction as under the law in force, immediately before the commencement of this Regulation was exercisable in respect of that territory by the Tribunal de Relacao the highest Court of Appeal for the said territory during Portuguese regime. Goa, Daman and Diu Judicial Commissioner's Court (Declaration as High Court) Act, 1964, he further submitted, was enacted for declaring the Goa, Daman and Diu Judicial Commissioner's Court as High Court for the purposes of Articles 123, 133 and 134 and the said enactment provided for appeals to the Supreme Court of India from the judgment, decree or sentences passed by the Tribunal de Relacao under Section 7 of the said Act.

(3.) Relying on the judgment of the Apex Court ,New India Assurance Company Ltd v. Nusli Neville Wadia and Anr., 2008 3 SCC 279 he tried to persuade us to the view that there ought to be the purposive construction of any Statute to be resorted to in order to fulfill the objects of the Act lest literal construction leading to anomaly or absurdity; and in the instant case, the purposive construction of the Act of 1981 would not allow taking away of Letters Patent Appeal's appellate jurisdiction available under the charter to the High Court at Bombay. He further submitted that the Letters Patent is the charter under which the High Court is established and the powers given to the High Court into the Letters Patent are akin to the constitutional powers and as such the right to entertain the appeal against the judgment of a Single Judge available under the Letters Patent would not get excluded. To reinforce this submission, he relied upon the judgment reported in , Sharda Devi v. State of Bihar., 2002 3 SCC 705 In this context, he argued, the intent of the law makers in incorporating Section 4 in the Act of 1981 was not to abridge the powers of the High Court but to expand them with the additional powers which were exercisable by the Tribunal de Relacao. Otherwise, he argued, the conferment of such jurisdictional powers and authority as, under the law in force immediately before the appointed day are exercisable in respect of the said territories by the Court of Judicial Commissioner on the High Court at Bombay would get abridged in terms of exceptions and modifications, particularly as regards non-application of provisions of Articles 216, 217, 218, 220, 221, 222, 223, 224, 224A, 225, 230, 231 of the Constitution of India, under Section 6 of the Goa, Daman and Diu Judicial Commissioner's Court (Declaration as High Court) Act 1964. In addition to such oral submission, the learned Advocate Mulgaonkar for the appellant placed on record written submissions which are marked 'X' for identification.