DEVA Vs. DURGASHANKAR

JUDGEMENT

(1.) On a reference made by a Division Bench, this Full Bench has been constituted to decide the following question :- "Whether an appeal under Clause 10 of the Letters Patent lies to a Division Bench of this Court against the judgment of a single Judge disposing of a petition under Art. 226 of the Constitution"?

(2.) The facts giving rise to this reference, briefly, are as follows : Under the rules of this High Court certain petitions under Art. 226 of the Constitution are heard by a Single Judge of this Court. Aggrieved by the final decision given by a learned single Judge in such petition, an appeal was preferred under Clause 10 of the Letters Patent constituting this High Court. When that appeal came up for hearing before a Division Bench of this Court, a preliminary objection was raised as to the maintainability of the appeal. Reliance was placed on a decision of a Division Bench of this Court in L.P.A. 16/85 (reported in 1986 Lab IC 640). (National Textile Corporation (MP) Limited, Indore v. Radheshyam Suroliya.) The Division Bench which heard this appeal, rioted that on the question of maintainability of an appeal under Cl. 10 of the Letters Patent, from an Order disposing of a petition under Art. 226 of the Constitution, there was a conflict in two Division Bench decisions of this Court In Laxmi Kumari Devi v. Radhakishan Mataram Marwadi, 1961 MPLJ 1403, a Division Bench had held that an appeal from the decision of a single Judge disposing of a petition under Article 226 of the Constitution was maintainable under CL 10 of the Letters Patent. However, in LP.A. 16/85, another Division Bench of this court was of the opinion that an appeal under Cl. 10 of the Letters Patent from the decision of single Judge in a petition under Art. 226 of the Constitution was not maintainable. As, there was thus, a conflict between the two Division Bench decisions of this Court to resolve that conflict the aforesaid question was referred to a Larger Bench and that is how this question has come up before us for consideration.

(3.) Before we proceed to answer the question referred to us, it is necessary to note certain facts. Clause 10 of the Letters Patent constituting this court corresponds to CL 15 of the Letters Patent constituting the High Court of Bombay and Calcutta. Under that clause an appeal lies from a judgment of one Judge of the High Court pursuant to S. 108 Government of India Act, 1915, provided the judgment does not fall in any such category as is specified in that behalf in Clause 10. It therefore, follows that an appeal from a decision of a single Judge to a Division Bench is maintainable if two conditions are satisfied (1) that the decision amounts to a judgment not falling in any category specified in CL 10 of the Letters Patent from which no appeal lies and (2) that the judgment is pursuant to S. 108 of the Government of India Act, 1915. It was not and could not be disputed before us that a decision given by a single Judge disposing of a petition under Art 226 of the Constitution amounts to a judgment within the meaning of Cl. 10 of the Letters Patent. Such judgment does not fall in any category excepted by cl. 10 from the purview of appeals. The main controversy in this case centres round the question as to whether such judgment is pursuant to Sec. 108 of the Government of India Act, 1915.