lllliUI KESBAO MESllRAM & ORS. v. RAJlllIKABAl W/O ANANDRAO llAllAPORKAR & Allll.

1919. It should be reniembered that the Government of India Act of 1915-1919 was a Constitution Act and, therefore, the juris- diction which was conferred upon the High Courts by section 107 of that Act was a jurisdiction conferred upon them by a E Constitution Act.

The above view consistently held by the High Courts has found favour with this Court. In National Sewing 'nlread Co. Ltd. v. Jame11 Q1adwii:k & Bros. Ltd. [1953] S,C,R. 1028, this Court, after considering the relevant provisions of the F Government of India Act of 1915-1919, which are in their contents similar to the corresponding provisions of the Constitution of lndi.a, held that under that Act the Bombay High Court possessed all the jurisdictions that it had at the cormnencement of that Act and could also exercise all such jurisdictions that would be conferred upon it from time to G time by the legislative power conferred by that Act and, therefore, unless the right of appeal was otherwise excluded, an intra-court appeal lay under clause 15 of the Letters Patent of the Bombay High Court. The same, of course, would apply to the Letters Patent of the Calcutta and Madras High Courts. The Letters Patent establishing the Lahore High Court H ,constitute the Charter of the Punjab High Court. Clause 10 of

IJMAJI KESHAO MESllRAM v. RADHIKABAI [MADON, J.] 821

A those Letters Patent is .in pari materia with clause 15 of the Letters Patent of the Chartered High Courts. Referring to clause 10 of the Letters Patent of the Punjab High Court, this Court in South Asia Industries Private Ltd. v. S.B. Sarup Singh and Ors. [1965] 2 s.c.R. 756, said (at pages 761-62) : B "A plain reading of the said clause indicates that except in the 3 cases excluded · an appeal lay against the judgment of a single Judge of the High Court to the High Court in exercise of any other jurisdiction. • • Looking at the first part of the amended clause excluding the exceptions, it is obvious that its wording is general. • • It is not c permissible, by construction, to restrict the scope of the generality of the provisions of cl. 10 of the Letters Patent."

The Full Bench sought to distinguish the judgment of this Court in National Sewing Thread Collpany's case on the ground that the jurisdiction which the Single Judge was exercising in that case was one under the ordinary law and not under a Constitutional law, nainely, the Constitution of India, and that if the powers of the High Court under Articles 226 and 227 of the Constitution were also to be made subject to the rules of the High Court and the Letters Patent, these powers could be altered or affected by ordinary legislation. Article 225 of the Constitution is by its term made "Subject to the provisions of this Constitution and to the provisions of any law of the appropriate Legislature made by virtue of powers conferred on that Legislature by this Constitution". Thus, under Article 225 the jurisdiction of the existing High Courts F and the law administered by them and the powers of the High Courts to make rules and to regulate the sittings of the.Court and of members thereof sitting singly or in Division Courts have been preserved and continued subject to the provisions of the Constitution and of any law made by the appropriate Legis- lature. According to the Full Bench the .words "Subject to" G create a limitation upon the jurisdiction and powers of the existing High Courts. This is not a correct interpretation. Article 225 follows a pattern established by earlier legis- lation. Under section 9 of the Indian High Courts Act, 1861, the jurisdiction and powers of the High Courts were made subject to the legislative powers of the Governor-{;eneral of H

822 SUPREME COURT REPORTS [19861 1 s.c.R. A India in Council. Clause 44 of the Letters Patent of 1865 earlier made the provisions of the Letters Patent subject to the same legislative powers and after the amendment of the said clause by the amending Letters Patent of March 11, 1919, subject to the legislative powers of .the Governor-General in Legislative Council and also of the Governor-General in B Council. Under section 106(la) of the Government of India Act, 1915-1919, the Letters Patent of a High Court could be amended from time to time by t:he Crown by further Letters Patent. Section 223 of the Government of India Act, 1935, continued the jurisdiction of the existing High Courts subject to the provisions of Part IX of that Act, the provisions of any Order c in Council made under that Act or any other Act and the provisions of any Act of the appropriate Legislature enacted by virtue of the powers conferred on that Legislature by that Act. In the same way, Article 225 is made subject to the provisions of the Constitution and the provisions of any law of the appropriate Legislature made by virtue of powers conferred on that Legislature by the Constitution. The opening words of Article 225 "Subject to the provisions of this Constitution and to the provisions of any law of the appro- priate Legislature made by virtue of the powers conferred on that Legislature by thi" Constitution" only mean that Article 225 is subject to what is provided in the Constitution and in law made by an appropriate Legislature. The words "Subject to" cannot be construed, as the Full Bench has done, as referring only to a provision limiting or restricting the jurisdiction of the existing High C<>urts. They also include a provision which enlarges the jurisdiction and powers of the existing High Courts. Art:lcle 225, therefore, comprehends within its scope not only the jurisdiction which the existing High Courts possessed inmediately pdor to the comnencement of the Consti- tution but also the jurisdiction and powers which the other Articles of the Constitution, such as Articles 226, 227 and 228, confer upon the High Courts. A Special Bench of the Calcutta High Court in Qlaiman, Budge Budge limicipality v. G Mongru Mia and ors. A.I.R. 1953 Cal. 433, took the view that the words "Subject to" in the opening part of Article 225 also covered enlargement of jurisdiction and these words would, therefore, import into Article 225 the enlargement of its jurisdiction, for example, by Article 226. Das Gupta, J,, however, gave a dissenting judgment in that case following the H line of reasoning adopted by a Division Bench of that High

UMAJI KESHAO MESHRAM v. RADHIKAJlAI [MAOON, J. ] 823

A Court in India Electric llorka Ltd. v. Registrar of Trade Marka A. l.R, 1947 Cal. 49 in which a contrary view was taken. The case of India Electric Works Ltd. v. Registrar of Trade Marke was expressly overruled by this Court in Hatio!lal Sewing Thread Company's case. Other High Courts, as for example, the Allahabad High Court in Sheo Prasad v.· State of U.P., A.I.R. B 1965 All. 106 have also taken the same view as the majority ) judgment in Budge Budge !Unicipality Case.

The fact that Article 225 makes the jurisdiction and powers of the eKisting High Courts subject to a law of the appropriate Legislature does not mean that the jurisdiction under Article 226 or 227 cannot come within the scope of c Article 225. A law made by an appropriate Legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Articles 226, 227 and 228 are not made subject to any law made by Parliament or the State Legislatures, the powers conferred by these three Articles cannot be limited, abridged or taken away by any D Legislature. They can only be affected by amending the Consti- tution. All that the qualifying phrase in Article 225 means is that if a particular jurisdiction of an existing High Court is one conferred by ordinary legislation, it can be affected, either by way of abridgement or enlargement, by a law made by the appropriate Legislature and if it is one conferred by the E Constitution, it can -only be so affected by a constitutional amendment. What has escaped the not.ice of the Full Bench is that a provision for a right of appeal is not one which in any manner limits, abridges, takes away or adversely affects the power of the High Court under Article 226 or 227. Such a provis.ion merely regulates the exercise of the powers under F these Articles. We may point out here that Article 145(1) confers upon this Court the power to make rules including rules as to the proceedings in the Court for the enforcement of any of the rights conferred by Part Ill, that is, Funda- mental Rights. By the opening clause of Article 145(1) this power is made "Subject to the provisions of any law made by G ~arliament". Therefore, the practice and procedure in respect of petitions under Article 32 for the enforcement of Funda- mental Rights are regulated by rules framed by this Court and by any law made by Parlianient in that behalf, We fail to see why the practice and procedure in respect of petitions under Articles 226 and 227 should stand on a different footing. H

824 SUPREME COURT REPORTS [1986] 1 s.c.R.

A The position which emerges from the above discussion is that under clause 15 of the Letters Patent of the Chartered High Courts, from the judgment (within the meaning of that term as used in that clause) of a Single Judge of the High Court an appeal lies to a Division Bench of that High Court and there is no qualification or limitation as to the nature B of the jurisdiction e:<ercised by the Single Judge while passing his judgment, provided an appeal is not barred by any statute (for example, section lOOA of the Code of Civil f Procedure, 1908) and provided the conditions laid down by clause 15 itself are folfilled. The conditions prescribed by clause 15 in this behalf are : (1) that it tmlSt be a judgment c pursuant to section 106 of the Government of India Act of 1915, and (2) it must not be a judgment falling within one of the excluded categories set out in clause 15.

What falls next to be considered is the question whether the judgment of a Single Judge of the High Court in a petition D under Article 226 or 227 is a judgment pursuant to section 108 of the Goverrurent of India Act of 1915-1919. The expression "pursuant to section 108 of the Government of India Act" was substituted for the expression "pursuant to section 13 of the said recited Act;', that is, the Indian High Courts Act, 1861, when clause 15 was amended by Letters Patent dated March 11, E 1919, Section 13 provided that subject to any laws or regulations which may be made by the Governor-ceneral in Council, the High Court established in any Presidency under that Act may by rules made by it provide for the exercise bY one or more Judges or by Division Courts constituted by two or more Judges of the original and appellate jurisdiction vested F in such High Court. Section 106(1) of the Government of India Act of 1915 made sim:llar provision, while section 108(2) reproduced the power conferred by section 14 of the Indian High Courts Act, 1661, upon the Chief Justice of the High Court to determine what Judges, whether with or without the Chief Jus.tice, should sit alone or in the Division Courts. G When the Government of India Act of 1915-1919 was repealed and replaced by the Government of India Act, 1935, and the 1935 Act was repealed and replaced by the Constitution, the expression 11 pufsuant to section 107 of the Government of India Act" in clause 15 remained unamended. The fact that this expression remained unaltered makes no difference. Section 223 H of the Government of India Act, 1935, while continuing the

UMAJI KESHAO MESHRAM v. RADHIKABAI [MADON, J,) 825 A jurisdiction and powers of the Judges of the existing High Courts and the respective powers of the Judges thereof in relation to the administration of justice in the court expressly provided that such powers shall include "any power to make rules of Court and to regulate the sittings of the Court and of members thereof sitting alone or any division B court". Thus, the rule-making power of the High Court and of the Chief Justice of the High Court to assign work either to Single Judges or to Division Courts and to determine what Judges, whether with or without the Chief Justice, would constitute the several Division Courts remained unimpaired and unaffected. Section 38(1) of the Interpretation Act, 1889 (52 & 53 Viet., c.63), now repealed by the Interpretation Act, c 1978 (1978 Eliz.2, c.30), provided as follows :

"38. Effect of repeal in future Acts.

(l) Where this Act or any Act passed after the couanencement of this Act repeals and re-enacts, D with or without modification, any provisions of a former Act, references in any other Act to the provisions so repealed, shall, unless the contrary intention appears, be construed as references to the provisions so re-enacted." E Section 8 of the General Clauses Act, 1897, (Act X of 1897) provides as follows :

"8. Construction or references to repealed enactEnts. - F (1) Where this Act or any Central Act or Regulation made after the commencement of this Act, repeals and re-enacts, with or without modification, any, provision of a former enactment, then references in any other enactment or in any instrument to the provision so repealed shall, unless a different G intention appears, be construed as references to the'provision re-enacted.

(2) Where before the fifteenth day of August, 1947, any Act of Parliament of the United Kingdom H repealed and re-enacted, with or without modifi-

826 SUPREME COURT REPORTS [19861 1 s.c.R. A cation, any provision of a former enactment, then references iln any Central Act or in any Regulation or instrumeJ~t tQ the provision so repealed shall, unless a different intention appears, be construed as referencf~ to the provision so re-enacted. 11

B Sub-section (2) was inserted in section 8 by Act 18 of 1919. The opening words ol: sub-section (2) ''Where before the fifteenth day of Augu11t, 1947, any Act of Parliament of the United Kingdom repealed and re-enacted" were substituted for the words "Where any Act of Parliament repeals and re-enacts" by the Adaptation of Laws Order, 1950. Although section 38(1) c of the Interpretation Act speaks of references in any other Act to the provisions of a repealed and re-enacted Act, section 8 of the General Clauses (let speaks of references to a repealed and re-enacted Act not only in any Act or Regulation but also in any "instrument". , An "instrument" is a writing, and generally means a writing of a formal nature. (See D Jowitt 's "Dictionary of English Law'', second edn., vol. l, p,988). Letters Patent mean writings of the sovereign, sealed with the Great Seal, whereby a person or company is enabled to do acts or enjoy privileges which he or it could not do or enjoy without such aul:hority (ibid, vol. 2, p.1085). Letters 1 Patent thtls mean, an instrument issued by the Crown or govern- E ment (see Black's "Law Dictionary", fifth edn., p.815), Letters Patent eetablishing the High Courts issued by the Crown , would thus fall within the meaning , of the term "instrument" as ueed in section 8(2) of the General Claus~s Act. 'l'hus, by the combined operation of section 38 of the Interpretation Act and section 8 of the General Clauses Act, F the expression "pursu•mt to section 108 of the, Government of India Act", is on the coming into force of the Government of India Act, 1935, to be read as "pursuant to section 223 of the Government of India Act, 1935." Article 225 of the Consti- tution is in pari materia with section 223 of the _Government of India ~t, 1935. Article 367(1) of the Constitution G provides that the General Clauses Act, 1897, shall apply for the interpretation of the Constitution as it applies for ~he interpretation of an Act of the Legislature of the Dominion of India, Thus, by the combined operation of section 38(1) of the Interpretation Act and section 8 of the General Clauses Act, the expressio11 "pursuant to section 223 of the Government of H India Act, 1935," which was deemed to have been substituted

UMAJI KESHAO MESHRAM v, RADHIKABAI [MADON, J. ) 827

A for the expression "pursuant to section 108 of the Government of India Act" in clauae 15 of the Letters Patent is, on the comnencement of the Constitution, to be read as "pursuant to Article 225 of the Constitution."

In National Sewing Thread Company' a case this Court said B (at pages 1036-7) :

"As a matte~ of history the power was not conferred for the first time by section 108 of the Government of India Act, 1915. It had already been conferred by section 13 of the Indian High Courts Act of

1861. We are further of the opinion that the High c Court was right in the view that reference in clause 15 to section 108 should be read as a reference to the corresponding provisions of the 1935 Act and the Constitution. The canon of construction of statutes enunciated in section 38 of the Interpretation Act and reiterated with some 0 modifications in section 8 of the General Clauses Act is one of general application where statutes or Acts have to be construed and there is no reasonable ground for holding that that rule of construction should not be applied in construing the charters of the different High Courts. These E charters were granted under statutory powers and are subject to the legislative power of the Indian Legislature. Assuming, however, but not conceding, that strictly speaking the provisions of the Interpretation Act and the General Clauses Act do not for any reason apply, we see no justification F ' for holding that the principles of construction enunciated in those provisions have no application for construing these charters."

The Full Bench sought to distinguish the decision in National Sewing Thread Company's case by relying upon a G judgment of the Assam High Court in lladha Koban Pathak v. Upendra Patowary and Ors. A.I.R. 1962 Assam 71. That case had no relevance to the point which the Full Bench had to decide __. for it turned upon its own special facts. By section 3 of the Assam Revenue Tribunal (Transfer of Powers) Act, 1948, the Assam High Court was empowered to exercise such jurisdiction H

828 SUPREME COURT REPORTS [1986] 1 s.c.R.

A to entertain appeals and revise decisions in revenue cases as was vested in the Provincial Government immediately before April 1, 1937, undE!r any law for the time being in force. Section 5 of the said Act provided that no appeal or revision should lie against any order passed by the Assam High Court in the exercise of its powers in appeal or revision under the B said Act. A Letters Patent appeal was sought to be filed against the decision of a Single Judge of the said High Court ~ given under section 3 of the said Act. The Assam High Court held that such an appeal was not competent. Section 5 of the said Act itself showed that no further appeal lay against a decision of the High Court in an appeal filed under section 3 C of the said Act even though given by a Single Judge. The Assam High ~ourt pointed out that the power exercised by the High Court under the said Act was a special jurisdiction and was an exercise by the High Court of powers possessed by the Provincial Government and the Tribunal which were transferred to the High Court by the said Act and was not the exercise by D the High Court of il:s powers as a High Court under the Act by ,_ which it was established. Thus, this was a case of a statutory exclusion of a right of second appeal in a matter decided by the High Court as an appellate and revisional authority constituted by a special Act passed by the Provincial Legislature in the e,xercise of its legislative power. E The Full Bench has confused the source of power with the exercise of that power. Conferment of power is one thing while the exercise of such power is a wholly different thing. Articles 226 and 227 confer certain powers upon the High Courts while Article 225 of the Constitution deals with the F power to make rules: for the exerclse of powers possessed by the existing High Courts. The rule-making power extends to all /-" jurisdictions and powers possessed by the existing High Courts, whether at the date of their Letters Patent or of the Goverrunent of India Act of 1915-1919 or of the Government of India Act, 1935, or conferred upon it by the Constitution G itself or subsequent to the commencement of t.he Constitution by any amendment of the Constitution or any law made by the appropriate Legislature. According to the Full Bench, the rule-making power under Article 225 would not extend to the exercise of jurisdiction under Article 226 or 227 because I-- these Articles contain inbuilt rule-making power. This is H equally incorrect. Such a ruleLBa.king power is neither eKpressly provided for nor implied in either of these

UMAJI KE SHAO MESHRAM v, RADHIKABAI [MADON, J, ] 829

A these two Articles. The power to make rules for the exercise of jurisdiction under Articles 226 and 227 by the existing High Courts is contained in Article 225 only.

Yet another reason given by the Full Bench for coming to the conclusion that the rule-making power of the High B Court would not apply to the exercise of power conferred by Articles 226 and 227 is that as these powers were to be exer- cised by the High Court, when a Single Judge exercised either of these powers, he did it on behalf of the whole High Court and filing an appeal against the judgment of the Single Judge given in a petition filed under Article 226 or 227 would be tantruoount to filing a second petition in the same matter. c It is difficult to understand this line of reasoning. Various statutes provide for appeals to the High Court. When the expression "Higb Court" is used, it only means the High Court acting through one Judge or a Division Court consisting of two or oore Judges as may be provided by the rules of Court unless any enactment specifically provides for a particular D number of Judges to hear any particular matter. What the Full Bench overlooked was that an appeal is not a fresh proceeding but merely a continuation of the original proceed- ing as is well-established by decisions of this Court - see, for instance, Garikapatti Veeraya v. N. Subbiah Choudhury (1957] s.c.R. 488, and Ahw<lahad Mfg. &·Calico Ptg. Co. Ltd. E v. Ram Tahel l!IJJ!!!•nd &Ors., (1973] 1 S.C.R, 185,

From what has been said above it tDJSt follow that when a Single Judge of a Chartered High Court decides a petition under Articles 226 or 227, his judgment is one given pursuant to Article 225 of the Constitution and is appealable under F clause 15 of the Letters Patent unless it falls within one of the excluded categories.

According to the Full Bench even were clause 15 to apply, an appeal would be barred by the express words of clause 15 because the nature of the jurisdiction under Article G 226 and 227 is the same inas1111ch as it consists of granting the same relief, namely, scrutiny of records and control of subordinate courts and tribunals and, therefore, the exercise of jurisdiction under these Articles would be covered by the expression "revisional jurisdiction" and "power of superin- H

830 SUPREME COURT REPORTS [19861 1 s.c.R.

A tendence". We are afraid, the Full Bench has misunderstood this scope and effect of the powers conferred by these "' Articles. These two Articles stand on an entirely different footing. As made abundantly clear in the earlier part of this judgment, their source and origin are different and the models upon which they are patterned are also different. Under Article 226 the High Courts have power to issue directions, B orders and writs to any person or authority including any ~ Government. Under Article 227 every High Court has the pCMer of superintendence over all courts and tribunals throughout the territory in relation to which it exercises jurisdiction. The power to issue writs is not the same as the power of superintendence. By no stretch of imagination can a writ in c the nature of habeas corpus or mandamus or quo warranto or prohibition or certiorari be equated with the power of superintendence. These are writs which are directed against persons, authorities and the State. The power of superin- tendence conferred upon every High Court by Article 227 is a supervisory ·jurisdiction intended to ensure that subordinate ),. D courts and tribunals act within the limits of their authority and according to law (see State of Gujarat v. Vakhatsingbji Vajesingbji Veghela A.I.R. 1968 S.C. 1487, 1488, and Ahmedabad Mfg, & Calico Ptg. Co. Ltd. v. llaa Tahel Rl!!W!and & Ora.). The orders, directions and writs under Article 226 are not intend- ed for this purpose and the power of superintendence conferred upon the High Courts by Article 227 is in addition to that conferred upon the High Courts by Article 2£6. -Though at the first blush it may seem that a writ of certiorari or a writ of prohibition partakes of the nature of superintendence inas1J11ch as at times the end result is the same, the nature of the power to issue these writs is different from the supervisory or superintending power under Article 227. The powers Ir conferred by Articles 226 and 227 are separate and distinct and operate in different fields. The fact that the same result can at times be achieved by two differ"ent processes does not mean that these processes are the same. G Under Article 226 an order, direction or writ is to issue to a person, authority or the State. In a proceeding under that Article the person, authority or State against whom the direction, order or writ is sought is a necessary party. ;- Under Article 227, however, what comes up before the High Court is the order or judgment of a subordinate court or H

UMAJI KESHAO MESHRAM v. RADHIKABAI [MADON, J,] 831

A tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority and according to law. Prior to the commencement of the Constitution, the Chartered High Courts as also the Judicial Collllrlttee had held that the power to issue prerogative writs possessed by the Chartered High Courts was B an exercise of original jurisdiction (see Mahomedalli Allabou: v. Inailji Ahdul.al.i, llaghunath Kesbav Khadilkar v. Poona Municipality and another, Ryots of Garahandbo an:! other villages v. zaal.udar of Parlaldlll!di and another and llaulvi Hamid Hasan llomani v. llamrarilal Roy and others L. R. [ 1946-4 7] 74 I.A. 120, 130-31; s.c,m A.I.R. 1947 P.C. 90, 98), In the last mentioned case which dealt with the nature of a writ of c quo warranto, the Judicial Committee held : ·

"In their Lordships' opinion any original civil jurisdiction possessed by the High Court and not in express terms conferred by the Letters Patent or later enactments falls within the description of ordinary original civil jurisdiction."

By Article 226 the power of issuing prerogative writs possessed by the Chartered High Courts prior to the commencement of the Constitution has been made wider and more extensive and conferred upon every High Court. Tite nature of the exercise of the power under Article 226, however, remains the same as in the case of the power of issuing prerogative writs possessed by the Chartered High Courts. A series of decisions of this Court has firmly established that a proceeding under Article 226 is an original proceeding and when it concerns civil rights, it is an original civil proceeding (see, for instance, State of Uttar Pradesh v. Dr. Vijay Anand Maharaj (1963] 1 S.C.R. 1, 16, Coomissioner of lncome-t:mi:, Bombay and another v. lahwarlal llbagwaodas and others (1966] 1 s.c.R. 190, 197-8, Ramesh and another v. Seth r.....talal Kotilal Patni and others [1966] 3 S.C.R. 198, 203, Arhind Kumar Singh v. Hand Kishore Prasad & Ors. (1968] 3 G S.C.R. 322, 324 and Almedabad Mfg. & Calico Ptg. Co. Ltd. v. Ram Tahel Rmnnanc! & Ors. (1973] 1 S.C.R, 185).

Consequently, where a petition filed under Article 226 of the Constitution is according to the' rules of a particular High Court heard by a Single Judge, an intra-court appeal will H

S32 SUPREME COURT REPORTS [19861 i s.c.R.

A lie from that judgment if such a right of appeal is provided in the charter of that High Court, whether such Charter be Letters Patent or a statute. Clause 15 of the Letters Patent of the Bombay High Court gives in such a case a right of intra-court appeal and, therefore, the decision of a Single Judge of that High Court given in a petition under Article 226 would be appealable to a Division Bench of that High Court. B It is equally well-settled in law that a proceeding under Article 227 is not an original proceeding. In this connection, we need refer to only two decisions of this Court. In Almedabad Mfg. & Calico Ptg. Co. 's Case this Court said (at pages 193-4) : c "Article 227 of the Constitution no doubt does not confer on the High Court power similar to that of an ordinary court of appeal. The material part of this Article ·substantially reproduces the pro- visions of s. 107 of the Government of India Act, D 1915 except that the power of superintendence has been extended by this Article to Tribunals as well. Section 107 according to preponderance of judicial opinion clothed the High Courts with a power of judicial superintendence apart from and independ- ently of the provisions of the other laws conferr- E ing on them revisional jurisdiction. The power under Art. 227 of the Constitution is intended to be used· sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals within the bounds of their authority and, not for correcting mere errors : see Narayan F Singh v. Amar Nath, [1954] S.C.R. 565, • , • Under Art. 226 of the Constitution it may in this connection be pointed out the High Court does not hear an appeal or a revision : that court is moved to interfere after bringing before itself the record of a case decided by or pending before a G court, a tribunal or an authority, within its jurisdiction."

The origin and nature of the power of superintendence conferred upon the High Courts by Article 227 was thus stated

UMA.JI KESHAO MESHRAM v. RADHIKABAI [MADON, J. ] 833

A by this Court in Waryam Singh and another v. Aaarnath and another [1954] s.c.R. 565. It reads as follows (at pages 570-1) :

"The material part of article 227 substantially reproduces the provisions of section 107 of the B Government of India Act, 1915, except that the power of superintendence has been extended by the article also to tribunals. • The only question raised is as to the nature of the power of superintendence conferred by the article. Reference is made to clause (2) of the article in support of the contention that this article oniy confers on c the High Court administrative superintendence over the subordinate courts and.tribunals. We are unable to accept this contention because clause (2) is expressed to be without prejudice to the generality of the provisions in clause (1). Further, the -'· preponderance of judicial opinion in India was that section 107 which was similar in terms to section 15 of the High Courts Act, 1861, gave a power of judicial superintendence to the High Court apart from and independently of the provisions of other laws conferring revisional jurisdiction on the High Court. In this connection it has to be remembered that section 107 of the Government of India Act, 191 ~, was reproduced in the Government of India Act, 1935, as section 224. Section 224 of the 1935 Act, however, introduced sub-section (2), which was new, providing that nothing in the section should be construed as giving the High Court any Juris- F diction to question any judgment of any inferior court which was not otherwise subject to appeal or revision. The idea presumably was to nullify the effect of the decisions of the different High Courts referred to above. Section 224 of the 1935 Act has been reproduced with certain modifications G in article 227 of the Constitution. It is signifi- cant to note that sub-section (2) to section 224 of the 1935 Act has been omitted from article 227. This significant omission has been regarded by all High Courts in India before whom this question has H

834 SUPREME COURT REPORTS [19861 i s.c.a. A arisen as having restored to the High Court the power of judicial superintendence .it had under section 15 of the High Courts Act, 1861, and section 107 of the Government of India Act, 1915."

Under cl.ause 15 of the Letters Patent of the Bombay High Court no intra-court appeal lay against an "order passed or B made in the exercise of the power of superintendence under the provisions of section 107 of the Government of India Act". By the same process of interpretation by reason of which the phrase "pursuant to section 108 of the Government of India Act" in clause 15 is to be read as "pursuant to Article 225 of the Constitution of India", the phrase "order passed or made c in the exercise of the power of superintendence under the provisions of section 1Q7 of the Government of India Act" is to be read as "order passed or made in the exercise of the power of superintendence under the provisions of Article 227 of the Constitution", The result is that an intra-court appeal does not lie against the judgment of a Single Judge of the D Bombay High Court given in a petition under Article 227 by reason of such appeal being expressly barred by clause 15 of the Letters Patent of that High Court. This is the view also taken by different High Courts (see, for instance, Jagmmath Gaabaji 0.flrba!e V• Qtlabrao llaghobaji Bobde, SH!rlvmdn Barua v. Bare lrlahna De & Ors. A, I, R. 1953 Cal. 636, Shrinivaaa E Reddfar and Ors. v. lrlahnasw8111. lleddiar and Ors., A.l.R, 1955 Mad. 72, In re V. Tl.rupulisw11111 Naida, 1.L.R. 1955 Mad. 1083, s.c. A.l.R, 1955 Mad. 287, J. and K. Co-operative Bank v. si--1-din- Bacha, A,l,R. 1970 J & K 190, and Ishwar Singh v. lla!I Piari and Anr, A,l,R. 1978 H.P. 39).

F According to the Full Bench, a right of appeal against the judgment of a Single Judge in a petition under Articles 226 or 227 is expressly barred by Rule 18 of Chapter XVII of the Bombay High Court Appellate Side Rules, 1960 (hereinafter referred to as "the Appellate Side Rules"). In order to reach this conclusion the Full Bench relied upon the phrase "finally G disposed of" occurring in the said Rule 18. It is not possible to accept the construction placed by the Full Bench upon the said Rule 18. The Bombay High Court possesses both an Original Side and an Appellate Side. The Judges of the High Court have, therefore framed two sets of rules of Court, one for the Ori- ginal Side and the other for the Appellate Side. We need not H

UMAJI KESHAO MESHRAM v. RADHIKABAI [MAOON, J,] 835

A trouble ourselves with the earlier sets of rules but will confine ourselves only to referring to the rules now in force. Under Rule 636(1) of the Rules of the High Court of Judicature at Bombay (Original Side), 1980, an application for the issue of a direction, order or writ under Art.icle 226 other than an application for a writ of habeas corpus is to be filed on the B Original Side if the matter in dispute is or has arisen sub- stantially within Greater Bombay and is to be heard and. disposed of by such one of the Judges sitting on the Original Side or any specially constituted Bench as the Chief Justice may appoint. The provision in the earlier Original Side Rules was the same. Under Chapter XXVIII of the Appellate Side Rules, all applications for writs or orders in the nature of writs of habeas corpus under Article 226 of the Constitution are to be made and heard and disposed of by the Division Bench taking criminal business of the Appellate Side of the High Court. Under Rule 1 of Chapter XVII, of the Appellate Side Rules, every application for the issue of a direction, order or writ under Article 226, if the matter in dispute is or has arisen substantially outside Greater Bombay, is to be heard and disposed of by a Division Bench appointed by the Chief Justice. Rule 4 of Chapter XVII is as follows :

"4. Division Bench to dispose of the application; rule nisi may be granted by a Single Judge. E

Applicadons under Rule 1 shall be heard and dis- posed of by a· Division Bench; but a Single Judge may grant rule nisi, provided that he shall not pass any final order on the application." F Under Rule 17 of Chapter XVII, an application invoking the jurisdiction of the High Court under Article 227 of the Constitution or under Article 228 of the Constitution is to be filed on the Appellate Side and to be heard and disposed of by a Division' Bench to be appointed by the Chief Justice. The relevant provisions of Rule 18 are as follows : G

"18. Single Judge's polft!EB to finally clispose of applications under Article 226 or 227. -

Notwithstanding anything contained in Rules 1, 4 and 17 of this Chapter, applications Under Article H

836 SUPREME COURT REPORTS [1986] 1 s.c.R.

A 226 or Article 227 of the Constitution (or appli- cations styled as applications under Article 227 of the Constitution read with Article 226 of the Constitution) arising out of ~

(1) the orders passed by the Maharashtra Revenue B Tribunal under any enactment.

x x x x may be heard and finally disposed of by a Single Judge to be appointed in this behalf by the Chief Justice. c x x x x x

The omitted portion of Rule 18 sets out the orders passed by authorities under various statutes and decrees and orders passed by subordinate courts in any suit or proceeding, D excluding those arising out of the Parsi Chief Matriioonial Court, which are to be heard and disposed of by a Single Judge.

The non obstante clause in Rule 18, namely, "Notwith- standing anything contained in Rules 1,4, and 17 of this E Chapter", makes it abundantly clear why that rule uses the words :'finally disposed of". As seen above, under Rules l and 17, applications under Article 226 and 227 are required to be heard and disposed of by a Division Bench. Rule 4, however, gives power to a Single Judge to issue rule nisi in an appli- cation under Article 226 but precludes him from passing any F final order on such application. It is because a Single Judge has no power under Rules 1, 4 and 17 to hear and dispose of a petition under Article 226 or 227 that the non-obstante clause has been introduced in Rule 18, The use of the words "be heard and finally disposed of by a Single Judge" in Rule 18 merely clarifies the position that in such cases the power of the G Single Judge is not confined merely to issuing a rule nisi. These words were not intended to bar a right of appeal. To say that the words "finally disposed of" mean finally disposed of so far as the High Court is concerned is illogical because Rules 1, 4 and 17 use the words "be heard and disposed of by a Di vision Bench" and were the reasoning of the Full Bench correct, it would mean that so far as the High Court is

UMA.Jl KE SHAO MESHRAM v, RADHIKABAI [MADON, J. ] 837

- concerned, when a Single Judge hears a matter and disposes it A

of, it is finally disposed of and when a Division Bench disposes it of, it is not finally disposed of. The right of appeal against the judgment of a Single Judge is given by the Letters Patent which have been continued in force by Article 225 of the Constitution. If under the rules of the High Court, B a matter is heard and disposed of by a Si'lgle Judge, an appeal lies against his judgment unless it is barred either under the Letters Patent or some other enactment. The word "finally" used in Rule 18 of Chapter XVII of the Appellate Side Rules does not and cannot possibly have the effect of barring a right of appeal conferred by the Letters Patent. As we have seen above, an intra-court appeal against the judgment of a C Single Judge in a petition under Article 226 is not barred while clause 15 itself bars an intra-court appeal against the judgment of a Single Judge in a petition under Article 227.

Petitions are at times filed both under Articles 226 and 227 of the Constitution. The case of Harl Vislnm Kamath v. D Syed Ahmad Ishaque and others [1955] 1 S.C.R. 1104, before this Court was of such a type. Rule 18 provides that where such ~·etitions are filed against orders o) the tribunals or authorities specified in Rule 18 of Chapter XVII of the Appellate Side Rules or against decrees or orders of courts specified in that Rule, they shall be heard and finally dis- E posed of by a Single Judge. The question is whether an appeal would lie from. the decision of the Single Judge in such a case. In our opinion, where the facts justify a party in filing an application either under Article 226 or 227 of the Constitution, and the party chooses to file his application under both these Articles, in fairness and justice to such F party and in order not to deprive him of the valuable right of appeal the Court ought to treat the applicatipn as being made under Article 226, and if in deciding the matter, in the final order the Court gives ancillary directions which may pertain to Article 227, this ought not to be held to deprive a party of the right of appeal under clause 15 of the Letters Patent G where the substantial part of the order sought to be appealed against is under Article 226• Such was the view taken by the Allahabad High Court in Aida! Singh. and others v. Karan Singh and others A.I.R, 1957 All. 414 F.B. and by the Punjab High Court in Raj Kisban .Jain v. 'l.Ulsi Dass A.I.R. 1959 Punj. 291 aild Barham Dutt and others v. Peoples' Co-operative H

838 SUPREME COURT REPORTS [1986] 1 s.c.R.

A Transport Society Ltd., Nar Delhi and others A. I. R. 1961 Punj.

24. and we are in agreement with it.

For the reasons aforesaid it tlllSt be held that the Full Bench caae of Sbankar llaroba Salunke • Ors. v. Gy1111Chanc! ~bhad111nd Iothari • Ors. was wrongly decided except for the B conclusion reached by the Full Bench th{lt no appeal lies under clause 15 of the Letters Patent of the Bombay High Court against the judgment of a Single Judge of that High Court in a petition under Article 227 of the Constitution but not the reasons given by the Full Bench for reaching this particular conclusion. Accordingly, the said Full Bench decision is here- c by overruled to the extent mentioned above and the view taken by the Special Bench •in State of Maharashtra v. Xusua ai&mdutt BharE Upadhya is approved.

Before concluding the judgment on this part of the case it may be mentioned that in Shah Bal.. tat ~i v. Jayaben D. D Kania • Am:. S. Murtaza Fazal Ali, J., who spoke for himself and Varadarajan, J., observed at the end of his judgment as follows (at page 260) :

"Before closing this judgment we may indicate that we have refrained from expressing any opinion on E the nature of any order passed by a Trial Judge in any proceeding under Art. 226 of the Constitution which are not governed by the Letters Patent but by rules framed under the Code of Civil Procedure under which in some High Courts writ petitions are heard by a Division Bench. In other High Courts F writ petitions are heard by a Single Judge and a right of appeal is given from the order of the Single Judge to the Division Bench after preli- minary hearing·"

The third member of che Bench, A.N. Sen, J., who delivered a. G separate judgment did not make any observation to the above effect or concur with the above observation.

The question whether an intra-court appeal lay against the judgment of a Single Judge in a petition under.Article 226 or 227 of the Constitution was not before the Court in Shah H Jlabnl•t lhillji'• caae and did not fall to be decided in it. In

UMAJI KE SHAO MESllRAM v, RADHIKABAI [MAOON, J. ] 839

- fact, as stated in the above passage, the Court refrained from expressing any opinion with respect to the nature of an order A

passed in a proceeding under Article 226 of the Constitution. The statement in the above passage that such proceedings are governed by rules framed under the Code of Civil Procedure and not by Letters Patent was merely a casual and passing obser- B vation and not intended to be a statement of the law on the i point. In fact, proceedings under Article 226 cannot be governed by rules made by the High Cc-urts under the Code of Civil Procedure, 1908. Under sections 122 and 125 of the Code, the High Courts are conferred the power to make rules regulat- ing their own procedure and the procedure of the civil courts subject to their superintendence and they can by such rules annul, alter or add to all or any of the rules in the First Schedule to the Code. These rules are, therefore, intended to regulate the exercise of procedure in respect of matters to which the Code applies. The Code deals with suits and appeals, reference, review and revision arising out of orders and decrees passed in suits. Under section 141, the procedure provided in the Code in regard to suits is to be follO!ied, as far as it can be made applicable, in all proceedings in any court of civil jurisdiction. The Explanation to that section inserted by the Code of Civil Procedure (Amendment) Act, 1976, provides as follows : E "Explanation. - In this section, the expression 'proceedings' includes proceedings under Order IX, but does not include any proceeding under article 226 of the Constitution."

The power of a High Court to make rules of Court and to regulate the sittings of the Court and members thereof sitting singly or in Division Courts is to be found in its charter, whether it be a statute or Letters Patent. The position with respect to existing High Courts has already been set out in detail above. So far as High Courts which came into existence after the commencement of the Constitution are concerned, whenever new High Courts were set up the relevant statute made provisions in that l;!ehalf, for instance, the Andhra State Act, 1953, the States Reorganisation Act, 1956, the Bombay Reorganisation Act, 1960, the Delhi High Court Act, 1966, and the State of Himachal Pradesh Act, 1970. It is the charter of the High Court which generally con.f ers a right of intra-court K

840 SUPREME COURT REPORTS [1986] 1 S.C.R.

A appeal and it is the rules made under the rule-making power of the High Court which generally provide which matters are to be heard by a Single Judge and which by a Division Bench though at times statutes may also do so, as for example, the Kerala High Court Act, 1958, and the Karnataka High Court Act, 1961. Where by the charter of a High Court matters are not required to be heard by any particular number of Judges and such B charter provides for an intra-court appeal from the decision of a Single Judge, whether such an appeal would lie or not would depend upon whether by the rules made by the High Court in the exercise of its rule-making power the matter is heard by a Single Judge or a Division Bench subject to the condition that such right of appeal is not otherwise excluded. c The petition filed by the Appellants before the Nagpur Bench of the Bombay High Court was admittedly under Article 227 of the Constitution and under the rules of the High Court it was heard by a Single Judge. Under clause 15 of the Letters D Patent of that High Court an intra-court appeal against the decision of the learned Single Judge was expressly barred. The r appeal filed by the Appellants from the decision of the Single Judge to the Division Bench was, therefore, rightly dismissed as being not maintainable.

Learned Counsel for the Appellants also sought to challenge the decision of the learned Single Judge on the merits. The real object of granting Special Leave to Appeal in this case was to consider the question of law arising in the case. Apart from the question of maintainability of the appeal, there was no merit in the appeal filed by the Appel- lants before the Division Bench and even otherwise that appeal deserved to be dismissed.

In the result, this Appeal fails and is dismissed. The • parties will bear and pay their own costs of this Appeal •

P.s.s. Appeals dismissed.