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Judgment
M.M. Kumar, C.J.â€"This order shall dispose of LPAOW No. 62 and 63 of 2014, which have been filed by invoking Clause 12 of the Letters
Patent. In both the appeals, the Board of Directors of Jammu Central Co-operative Bank Limited has challenged judgment and order dated
01.10.2014 rendered by the learned Writ Court allowing the petitions filed by one Ajeet Kumar Bawa-respondent and Registrar Co-operative
Societies, J&K-respondent. The aforesaid petitions were filed before the learned Writ Court purportedly by invoking jurisdiction of this Court
envisaged under Section 103 the Jammu and Kashmir Constitution read with Article 226 of the Constitution of India because before the Writ
Court order dated 08.05.2014 passed by the Jammu & Kashmir Special Tribunal, (for brevity the Tribunal) was challenged whereby the Tribunal
had stayed the order dated 06.05.2014 passed by the Registrar, Co-operative Societies. Before the Registrar validity of the election of the
appellant-Board was challenged and the Registrar while issuing notice on 06.05.2014 had passed an interim order holding that the appellant-Board
was not to exercise any power till the interim directions were vacated or modified. The order, further, stipulated that the affairs of the Central Co-
operative Bank Ltd. were to be looked after by the Joint Registrar (Adm.) Co-Operative Societies, J&K. As stated above the aforesaid order
was stayed by the learned Judicial Member of the Special Tribunal on 08.05.2014. As a consequence the appellant-Board was to start
functioning. The Writ Court, however, set aside order dated 08.05.2014 by observing as under:-
The question, thus, arising is whether the Jammu and Kashmir Special Tribunal can exercise revisional power in relation to proceedings and
orders or decision passed in election petitions by the Registrar Cooperative Societies. Question also is, whether the order passed by the Registrar
called for immediate stay without obtaining objections from other side.
Learned Special Tribunal, while passing the impugned order dated 08.05.2014 and staying the order dated 06.05.2014 passed by the
Registrar, seems not to have shown any seriousness about its jurisdiction to hear the revision petition and acted in haste in passing the impugned
order without providing respondents therein opportunity to file objections.
Some important questions seem to have been raised by the petitioners in the Election Petition before the Registrar, which have been similarly
reflected in these writ petitions before this Court. The Registrar in that backdrop had issued the interim direction restraining the newly elected
Board of Directors from exercising their powers and directing further that during continuation of the interim direction affairs of JCCB shall be
looked after by the Joint Registrar (Adm). Registrar had ordered the listing of the case after two weeks only. No urgency in assailing this interim
direction by filing revision petition before Special Tribunal is evident and the Special Tribunal should better have asked the petitioners therein to
approach the Registrar or at least, before staying the order passed by the Registrar, should have sought objections of the other side which, as the
impugned order would show, was on caveat. I, thus, find sufficient ground for taking a view that learned Special Tribunal acted in haste in staying
the order passed by the Registrar and the order should not have been stayed without seeking objections from the other side.
Viewed thus, these writ petitions have merit and are allowed. Impugned order passed by the learned Special Tribunal, Jammu dated
08.05.2014 is set aside. Given the urgency and importance of the matter, which is evident from the pleadings of the parties, learned Special
Tribunal shall straightway take up the main revision petition and dispose of the same expeditiously and in any case within two weeks after first
effective hearing before the learned Tribunal hereafter. Learned Tribunal may, however, pass order in the stay application after hearing both the
sides simultaneously in the main revision petition and the stay application. Respondents on the first hearing before the Tribunal shall file their
objections to the stay application. Parties shall cause their appearance before the learned Tribunal on 13.10.2014.
1st Round of Litigation: Background Facts
This is second round of litigation. At this stage, it would be necessary to make a reference to some background facts, which resulted in first round
of litigation. The appellant had earlier been elected as Managing Committee of the Society on 24.07.2008. They were to hold office for the period
of three years, which was to expire on 23.07.2011. They initiated the process for election of new Committee ninety days before the expiry of its
term, as per the requirement of Section 29 of the Jammu & Kashmir Co-operative Societies Act, 1989 (for brevity Societies Act). One Ghulam
Nabi Malik was appointed as Returning Officer vide notification dated 23.04.2011 and he notified the election programme along with schedule of
time table on 24.06.2011 for the election of the Managing Committee, which was to be held on 24.07.2011. However, the Deputy Registrar, Co-
operative Societies, Jammu sent a communication dated 07.07.2011 to Ghulam Nabi Malik-Returning Officer to postpone the schedule atleast by
fifteen days so that the genuine objections of the members could be invited and disposed of to their satisfaction.
One Ram Swaroop Sharma and others filed OWP No. 983/2011 with a prayer for quashing appointment of Ghulam Nabi Malik as Returning
Officer and also for quashing notification dated 24.06.2011 issued by him giving detailed schedule of time table for election of the Managing
Committee. A learned Single Judge of this Court while issuing notice to opposite side passed an interim order for maintaining status-quo till the next
date of hearing before the Bench. Another writ petition bearing OWP No. 996/2011 was also filed by one Dev Raj Choudhary and others seeking
similar relief. Additionally it was prayed that the respondents be directed to include their names in the Election Rolls by permitting them along with
sons and wards of Ex-servicemen to participate in the election process including their right to contest election to the Managing Committee of the
Society. The petition was disposed of on 23.08.2012 by directing the respondents to accord consideration to their case having regard to the
amendments made in the bye-laws of the Society. The needful was required to be done within a period of four weeks from the date the petitioners
were to approach the Committee. The efforts of the appellant-Committee elected on 24.07.2008 was to continue functioning by seeking
declaration from the Court that by virtue of Section 29 of the Co-operative Societies Act, they were entitled to continue till new Committee was
elected. The learned Single Judge dismissed their petition by imposing costs of Rs. 50,000/-. The view of the learned Single Judge is discernible
from the following paras, which reads thus:-
Admitted fact position of these cases is that in terms of Sub-Section 2 of section 29 of Act of 1989, petitioners have ceased to be the members
of management Committee on 24.07.2011. In essence, under the guise of relief sought for in these writ petitions, petitioners are seeking declaration
that the Management Committee to which they were elected on 24.07.2008 and which has ceased to be functional by operation of Statute, shall
be declared to be still in existence. Petitioners' effort to seek such a declaration under the guise of prayer clause of these writ petitions, has but to
be rejected, in view of the mandate contained in Sub-section 2 of the Section 29 of the Act of 1989. By operation of statute, the management
Committee, of which petitioners were members has ceased to be functional, consequently, petitioners have ceased to be members of that
management committee. Petitioners have no locus in the facts and circumstances of these cases to challenge the order impugned in these petitions.
The interim orders of status quo passed in two writ petitions have to be read in the backdrop and context of relief sought for in those writ petitions.
The notification, where-under returning officer was appointed by the petitioners committee, has been called in question in those writ petitions. The
ex-parte order of status quo issued by the court would have reference only to the appointment of the returning officer and conducting of the
elections. In the facts of these cases, when management committee ceased to be functional by the operation of the statute itself, it cannot be said
that ex-parte interim order passed by the court would breathe new life into a non existing management committee. In one of the petitions, as
already stayed, even the status quo order was modified and it was specifically provided that the order would have reference to the conducting of
elections. The other writ petition in which status quo order was passed, has been disposed of. Registrar, in view of the mandate contained in Sub-
section 4 of Section 29 to the Act of 1989, was duly bound to appoint the Administrator for the Society as the earlier appointed committee had
cased to hold the office.
Reference made to Jayantibhai Dahyabhai Patel's case is of no help to the petitioner, inasmuch as, in that case in terms of Section 74-C(2) of
the relevant Act, on which reliance was placed before the said Court, it was provided that the members elected on the Committee shall hold office
for a period of three years from the date on which first meeting was held and will continue in office until immediately before the first meeting of the
members of the new committee is held. The act of 1989 does not have any such provision, which would allow the management committee and its
members to stay in office until such time, the newly elected members would convene first meeting of the new Management Committee. In Sh.
Parkash Singh's case, Registrar, and, not earlier management Committee had issued notice for conducting of elections. Since the Registrar had
issued the notification which was stayed by the writ court, the Division bench of this court directed for continuing with the election process from
where it was left. On facts, this case is different from the facts of these two petitions and the said judgment also does not help the petitioners.
For the above stated reasons, these petitions, being meritless, are dismissed along with connected CMA(s). Petitioners are saddled with costs
of Rs. 50,000/- (rupees fifty thousand only) and same shall be deposited in the Advocate's Welfare Fund within four weeks' from today. Registrar
shall take steps for holding elections of the Society within reasonable time.
Against the aforesaid view of the learned Single Judge an appeal was preferred, which also met the same fate. However, in para 10 of the
Division bench Judgment, it has been observed as under:-
As a last ditch effort, learned counsel for the appellants tried to project that no steps have been taken nor there is any direction which would
provide for elections of the Management Committee of the Society. Learned counsel for the respondents produced Photostat copy of the order
dated 09.10.2012 passed in OWP No. 983/2011whereunder it has also been provided that the elections of the Management Committee of the
Society shall be held immediately after decision in respect of review of the rules. Further it is provided that Registrar shall ensure conduct of
elections strictly in accordance with the Mandate contained in the J&K Co-Operative Societies Act, 1989 and J&K Co-operative Societies
Rules, 2001.
In the said background, we find the impugned judgment in terms whereof writ petition has been dismissed and costs amounting to Rs. 50,000/-
have been imposed, does not call for any interference.
The Board of Directors-appellant challenged the view taken by the Division Bench before Hon'ble the Supreme Court. On 19.02.2013 Special
Leave to Appeal (Civil) No. 7745/2013 emerging from the Division Bench's order dated 06.11.2012 was dismissed and the order passed by their
Lordships of Hon'ble the Supreme Court reads as under:-
Having heard learned counsel for the petitioners in both the matters, we are not inclined to entertain the same, since directions have already been
given by the high Court for holding of elections for the Members of the Managing Committee of the Co-operative Society after reviewing the Rules
relating to holding of the elections. However, as has been pointed out by learned counsel for the petitioners, such directions had been given by the
High Court as far back as in the month of October, 2012, and, in fact, an Administrator had also been appointed in the month of August, 2012.
Directions had been given to the Administrator to oversee the elections, but the same are not being held on account of the fact that according to the
petitioners, the Rules are yet to be revised.
In such circumstances, while not interfering with the order passed by the High Court, we direct the Registrar of the Co-operative Society, Jammu
& Kashmir, to ensure that the revision of the Rules for election of the Managing Committee of the various Co-operative Societies, is completed
within a month from the date of the communication of this order. Consequently, the elections to the Managing Committee of the Co operative
Society in question, is to be completed within two months thereafter on the basis of the amended Rules.
Any observations made in the impugned judgments of the High Court, shall be treated only as obiter and shall not be held against the petitioners in
any way.
As far as the costs imposed are concerned, the same are reduced by 50 per cent.
The Special Leave Petitions are dismissed with the aforesaid observations.
Second Round of litigation & side lights:
In the background of the aforesaid first round of litigation the Government of Jammu and Kashmir Co-operative Department issued SRO 236
dated 25.04.2013 amending Rules 16, 18, 19, 20, 21 and 23. The effect of the amendment appears to be that the Deputy Commissioner/Assistant
Commissioner (Revenue), have been authorized to conduct election of the Co-operative Societies. The validity of the aforesaid Rules has been
challenged by filing OWP No. 1368/2013 along with CMA No. 58/2013 titled Yash Pal v. State of J&K and others. A learned Single Judge of
this Court vide order dated 18.03.2014 passed an interim order that SRO 236 of 2013 dated 25.04.2013 shall not be acted upon after noticing
the argument of the petitioner. The ex-parte order passed in the aforesaid CMA No. 58/2013 is set out below in extenso:-
CMA No. 58/2013
Rule-16 Sub-Rules (1) and (2) as existed in the Jammu and Kashmir Cooperative Societies Rules, 2001 have been recasted vide SRO No. 1 of
2005 notified on 4.1.2005. With the object to bring it in tune with Mandate of Section 176, now in the Month of April, 2013, Sub-Rule (1) & (2)
have been substituted. According to the learned counsel for the petitioner, the substituted rules offend Section 176 of the Jammu and Kashmir
Cooperative Societies Act, because the elections of the members of the Committee is permissible only by the General Body of the Societies. The
substitution of the Rules in terms of SRO No. 236 of 2013 dated 25.04.2013 negates the said powers of the General Body of the Cooperative
Societies.
At the request of learned counsel for the respondents, one week's time is granted for filing objections but meanwhile, SRO No. 236 of 2013 dated
25.04.2013, shall not be acted upon.
On 10.03.2014 a meeting of the Jammu Central Cooperative Bank Ltd. was held and one Mohinder Singh-Chairman of the Jammu Central
Cooperative Bank Limited was authorized to hold election to the Board of Directors. As per the authorization, aforesaid Sh. Mohinder Singh
passed an order on 02.04.2014 for holding of elections. According to the order, in term of Section 29(4) of the Societies Act date for election to
the Board of Directors of the Jammu Central Cooperative bank Limited was notified as 18.05.2014 (Sunday) under the control and supervision of
Returning Officer namely Sh. Mohan Singh Bhatti, Retired Assistant Registrar, Cooperative Department. As a consequence on 22.04.2014
schedule for holding election was issued by the Returning Officer and a copy of the schedule was forwarded to the Registrar, Cooperative
Societies, J&K-respondent, Chairman. The Jammu Central Cooperative Bank Limited, Assistant Registrar Cooperative Societies Block Marh,
Jammu. The Returning Officer had fixed the last date for withdrawal of the candidature as 03.05.2014. It appeared that he declared nine
candidates duly elected unopposed member of the Board of Directors to the Jammu Central Cooperative Bank Limited (Annexure-G). Copy of
the aforesaid declaration was forwarded to the Registrar, Co-operative Societies, Additional Registrar Cooperative Societies and all the
candidates elected unopposed.
The President, Multi Purpose Cooperative Society Ltd., Muthi Rakwalal, Block Barnoti, District Kathua challenged the election of the Board of
Directors of the Jammu Central Cooperative bank Limited as declared on 03.05.2014 by filing an election petition under the provisions of
Societies Act read with Rule 16(5), (6) and (7) of the Societies Rules before the Registrar, Cooperative Societies, J&K at Srinagar. The Registrar
entertained the petition and vide order dated 06.05.2014 notice was issued to the appellant. The argument of the President Multiple Purpose
Cooperative Society, Muthi Rakwalan, District Kathua before the Registrar was that the election to the Board of Directors had been held without
prior knowledge and notice to the affiliated primary Cooperative Societies, which was otherwise mandatory as per the Cooperative Societies
Rules and proper publicity through mass media was not given to the election process with oblique motive of depriving the stakeholders from
participating in the election. Accordingly, the Registrar Cooperative Societies, J&K passed the following interim order on 06.05.2014:-
ORDER
06-05-2014: Presented today by Sh. Athar Hussain Ld. Counsel for the petitioner. Sh. Hussain stated that election to the Board of Directors of
the Bank has been held without prior knowledge and notice of the affiliate Primary Cooperative Societies, which was otherwise mandatory as per
Cooperative Societies Rules. It was further depose by the Ld. Counsel that proper publicity through mass media was not given to the election
process, allegedly for depriving the stakeholders from participating in the fray.
Keeping in view the assertions of the Counsel for the petitioner and gravity of the issue, this Court is satisfied to pass the following order-
Issue notice to the other side. List after two weeks. Meanwhile, the Board of Directors whose election is the subject matter of the present
Arbitration petition, shall not exercise the powers till the interim direction is vacated or modified, and the affairs of the Jammu Central Cooperative
Bank Ltd. Sehkari Bhavan, Railhead Complex, Jammu, shall be looked after by Joint Registrar (Adm.), Cooperative Societies, J&K"".
Put up after two weeks.
The aforesaid interim order was challenged before the Jammu & Kashmir Special Tribunal, Jammu (for brevity, the Tribunal) by filing revision
petition by the appellant. On 08.05.2014 the revision petition was entertained and operation of the order bearing No. RCS/LS/566-68 dated
06.05.2014 passed by the Registrar was stayed. The counsel for the President Multi Purpose Cooperative Society Limited was present as
caveator and sought time to file objections.
The interim order dated 08.05.2014 became the subject matter of challenge before the learned Writ Court, which was preferred by Ajeet
Kumar Bawa, President Multi Purpose Cooperative Society. He first time disclosed his name in the case OWP No. 1009/2014. It is in the
aforesaid background that the learned Writ Court entertained the writ petition against the interim order and the petitioner was able to persuade the
learned Writ Court to set aside the order dated 08.05.2014. The operative part of the order dated 01.10.2014 passed by the learned Court has
already been reproduced in extenso in the preceding paras (see para 1).
These appeals came up for hearing on 15.10.2014 before another Division Bench when the orders were reserved. For the reasons stated in
order dated 18.10.2014 the matter was posted for re-hearing.
Against the order dated 08.05.2014 passed by the Judicial Member of the Tribunal OWP No. 759/2014 was preferred by the Registrar
Cooperative Societies in the Srinagar Wing of this Court. On 29.05.2014 the learned Writ Court passed an interim order staying the operation of
the order passed by Judicial Member of the Tribunal on 08.05.2014. Against the interim order LPAOW No. 37/2014 was preferred. A Division
bench of this Court dismissed the LPA by holding that it was not maintainable because the Writ Court had passed the order while exercising its
supervisory jurisdiction envisaged under Section 104 of the Constitution of Jammu and Kashmir as has been laid down in the case of The J. and K.
Co-operative Bank Vs. Shams-ud-din Bacha, . Another reason for dismissal of the appeal was that the interim order was to operate only till next
date of hearing namely 13.06.2014. Accordingly, the appeal was dismissed.
Mr. S.S. Lehar, learned senior counsel with Mr. Ajay Sharma have raised many arguments but two principal submissions raised before us are
as under:
1) The writ petition preferred by the Registrar Cooperative Societies is not maintainable because a quasi judicial authority cannot become a party
to a lis inter se between two private parties. In support of their submission learned counsel have placed reliance on a judgment of Hon'ble the
Supreme Court rendered in the case of Mohtesham Mohd. Ismail Vs. Spl. Director, Enforcement Directorate and Another, and judgment of this
Court rendered in the case of Custodian Evacuee Property v. Ahad Nago AIR 1957 J&K 50 : JKJ Soft JKJ/8107 and have argued that the
Registrar is a quasi judicial authority under the Societies Act and the Societies Rules framed thereunder. It is supposed to take a dispassionate
view without any bias while deciding the dispute. On the contrary the Registrar has taken a partisan stand by filing OWP No. 759/2014 which is
wholly impermissible in law. Therefore, the writ petition filed by the Registrar against the order of Judicial Member of the Tribunal dated
08.05.2014 is not maintainable and on that account alone the instant appeals deserve to be allowed.
2) The locus standi of Sh. Ajeet Kumar Bawa was kept as a closely guarded secret and he earlier filed a petition before the Registrar under the
title President Multi Purpose Cooperative Society without disclosing his identity for the simple reason that he is ineligible to participate in the
election process being a Sarpanch of the Panchayat. Once a person is a Sarpanch, he incurs a disqualification as per the provisions of Rule 25(i) of
the Societies Rules. According to the learned counsel, for the first time he disclosed his identity before the Writ Court and deliberately it was kept
as closely guarded secret to achieve an oblique motive. He was neither a candidate nor competent to contest election on account of disqualification
incurred as per Rule 25(i) of the Societies Rules, which explains his attempt to conceal his identity in the petition filed before the Registrar
Cooperative Societies. It has further been submitted that an elected Board of Directors cannot be easily displaced by appointing a government
servant like a Joint Registrar (Admin) to run the affairs of a body like the Jammu Central Cooperative Bank Limited because the working of a
democratically elected body cannot be nullified on flimsy grounds.
Mr. Chashoo, learned Additional Advocate General on behalf of the Registrar, Cooperative Societies has argued that the Registrar is not
debarred from approaching the Writ Court to safeguard the interest of the Jammu Central Cooperative Bank. It has further been submitted that the
election has not been held in accordance with the provisions of the Act and the Rules framed thereunder inasmuch as no proper publicity was given
to the election programme. The notices intimating the holding of election were published in two newspapers virtually having no circulation namely
'News Now' in English and Taskeen in Urdu. As a result the Returning Officer declared the result whereby the earlier Board was declared elected
unopposed. A reference has also been made to the inspection report of NABARD, a communication of RBI and Government order granting
sanction to constitution of Enquiry Committee against Chairman/M.D., JCC Bank. Mr. Chashoo has also submitted that this Board had made
illegal appointments during its earlier tenure as is evident from the report dated 20.12.2011 furnished by the State Vigilance Organization, Jammu
(Annexure-H). According to the learned counsel, the election has not been held in accordance with the amended Rules as per the directions issued
by Hon'ble the Supreme Court and the elections held under old Rules without associating the Deputy Commissioner or Assistant
Commissioner(Revenue) is null and void. Attacking the bonafide of the order passed in OWP No. 1368/2013 (Yash Pal v. State of J&K and
others), Mr. Chashoo has argued that this is sponsored litigation initiated at the instance of appellant-Board of Directors as the fee of the counsel
was paid by the Bank. In support of his submission Mr. Chashoo has placed on record the fee bill presented by Sh. Aditya Sharma, Advocate
dated 06.12.2013 and the payment made by the JCC Bank on 14.12.2013.
Mr. Jalali, learned senior counsel appearing for Sh. Ajeet Kumar Bawa has argued that Mr. Bawa is a shareholder of the Apex body of the
Bank. He is not disqualified to participate being a member of the Panchayat or local body. He being a stake holder at first place has a cause to
espouse which he did by filing election petition before the Registrar Cooperative Societies. Mr. Jalali has also argued that under Article 226 of the
Constitution a writ petition can be filed for enforcement of fundamental rights or any other statutory rights. The writ petition could also be filed for
any other purpose like the one before the Writ Court. It has been submitted that the writ petition could be preferred against an interim order
passed by the J&K Special Tribunal. According to the learned counsel, the elections have been conducted illegally and in a clandestine manner
which flagrantly violates SRO 236 to elect the Apex body of the Bank unopposed. The election is also against the provision of Section 29 of the
Societies Act because the election notification was required to be issued by the Registrar. Sh. Mohinder Singh cannot assume third term in
succession which is against the statutory bar created by Rule 25(1)(e) of the Societies Act. Even otherwise the election has been held against the
judgment of Hon'ble the Supreme Court rendered on 19.02.2013, which requires that the election to the Managing Committee of the J&K
Cooperative Society was to be held on the basis of the amended Rules within a period of two months as laid down by the Supreme Court.
Having heard the learned counsel for the parties and examining their arguments in detail, we are of the view that the first question which needs
determination at our hands is whether the appeals are maintainable under Clause 12 of the Letters Patent against the judgment and order impugned
before us. It is true that writ petition before the learned Writ Court has been preferred under Article 226 of the Constitution of India against an
interim order passed by the Judicial Member of the J&K Special Tribunal, Jammu. It is well settled that such an order could be challenged before
the High Court under Section 115 CPC by filing a revision petition or by invoking the provision of Section 104 of the Constitution of Jammu &
Kashmir read with Article 227 of the Constitution of India. By filing a petition merely invoking Article 226 would not change the real character and
nature of the relief which would otherwise be covered by Section 104 of the Constitution of Jammu and Kashmir read with Article 227 of the
Constitution of India. In that regard the view of the Division Bench in this case is already available on record. A Division Bench headed by Hon'ble
Mr. Justice Virender Singh refused to entertain a Letters Patent Appeal being LPAOW No. 37/2014 at an earlier stage of this litigation when
appeal was filed by the appellant against the initial stay order passed in OWP No. 759/2014. The order of the Division Bench dated 12.06.2014
reads thus:-
LPAOW No. 37/2014
Not only the instant Letters Patent Appeal is not maintainable, the order impugned having been passed by the Writ Court while exercising its
supervisory jurisdiction envisaged under Section 104 of J&K State Constitution as held by this Court in case titled ' The J. and K. Co-operative
Bank Vs. Shams-ud-din Bacha, , it is otherwise subject to the objections and that the interim stay is operating only till next date of hearing before
the Bench. The main writ petition is posted for 13.06.2014 as indicated in the impugned order itself, therefore, the appellant should not have
rushed to this Court.
We have been informed by Mr. Jalali, learned Sr. counsel appearing for respondent No. 5 that the appellant has also filed objections to the
miscellaneous application as well as main writ petition.
Being that the position in the case on hand, we decline to interfere with the impugned order.
The appeal on hand stands dismissed as such along with CMA(s), if any.
Even otherwise, it is well settled that no appeal would be competent against an order passed in exercise of jurisdiction under Section 104 of
the Constitution of Jammu & Kashmir read with Article 227 of the Constitution of India. In that regard reliance may be placed on the judgments of
Hon'ble the Supreme Court rendered in the case of Ramesh Chandra Sankla Etc. Vs. Vikram Cement Etc., , Kesho Ram (Dead) by LRs. Vs.
Hem Raj, , Mohd. Saud and Another Vs. Dr. (Maj.) Shaikh Mahfooz and Others, and Shalini Shyam Shetty and Another Vs. Rajendra Shankar
Patil, . It would be profitable to extract the following statement of law in the case of Mohd. Saud (supra), which reads as under:-
While at first glance this argument may appear plausible but when we go deeper into it, we will realize that it has no merit. It would be strange
to hold that while two appeals will be maintainable against the interlocutory orders of a District Judge, only one appeal will be maintainable against
a final judgment of the District Judge.
It may be noted that there seems to be some apparent contradiction in Section 100-A as amended in 2002. While in one part of Section 100-
A it is stated ""where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court"" (emphasis
supplied), in the following part it is stated ""no further appeal shall lie from the judgment and decree of such Single Judge"". Thus while one part of
Section 100-A refers to an order, which to our mind would include even an interlocutory order, the latter part of the section mentions judgment
and decree.
To resolve this conflict we have to adopt a purposive interpretation. The whole purpose of introducing Section 100-A was to reduce the
number of appeals as the public in India was being harassed by the numerous appeals provided in the statute. If we look at the matter from that
angle it will immediately become apparent that the LPA in question was not maintainable because if it is held to be maintainable then the result will
be that against an interlocutory order of the District Judge there may be two appeals, first to the learned Single Judge and then to the Division
Bench of the High Court, but against a final judgment of the District Judge there can be only one appeal. This in our opinion would be strange and
against the very purpose of the object of Section 100-A, that is, to curtail the number of appeals.
It is well settled that the modern method of interpretation is purposive vide Directorate of Enforcement Vs. Deepak Mahajan and another, ,
Hindustan Lever Ltd. Vs. Ashok Vishnu Kate and others, and Workmen of American Express International Banking Corporation Vs.
Management of American Express International Banking Corporation, .
We are of the opinion that the apparent contradiction in Section 100-A as amended in 2002 was only due to bad drafting, and not much can
be made out of it once we understand the purpose of Section 100-A.
For the reasons given above, we are of the opinion that the Full Bench of the High Court has taken a correct view. Thus there is no force in
these appeals, which are accordingly dismissed. No costs.
(emphasis added)
In the case of Ramesh Chandra Shankla (supra) similar view has been taken, which is discernible from the following observations:-
In our considered opinion, however, on the facts and in the circumstances of the present case, the petitions instituted by the Company and
decided by a Single Judge of the High Court could not be said to be original proceeding under Article 226 of the Constitution. We are clearly of
the view that the learned Single Judge had decided the petitions in exercise of power of superintendence under Article 227 of the Constitution.
We have already referred to the facts of the case. According to the Company, voluntary retirement was accepted by the employees. They
thereafter challenged the action on the ground that the acceptance was not voluntary but they were compelled to opt for the scheme and were paid
some amount which was not in consonance with law and the action of not allowing them to continue in the employment amounted to removal from
service. They, therefore, approached Labour Court for an appropriate relief. The Labour Court entertained complaints and issued notice.
The Company appeared and raised preliminary objections. Issues were framed and a prayer was made by the Company to decide ""issues of
law"" as preliminary issues which prayer was rejected by the Labour Court. The Company approached Industrial Court which also did not interfere
with the order of the Labour Court. That order was again challenged by the Company by filing petitions in the High Court and the learned Single
Judge dismissed the petitions. In view of the aforesaid facts, we have no doubt that the learned Single Judge was exercising power of
superintendence over a Court/Tribunal subordinate to it under Article 227 of the Constitution. Obviously, a remedy of intra court appeal was not
available. We, therefore, hold that the Division Bench was right in coming to the conclusion that intra court appeals filed by the Company were not
maintainable. We see no infirmity in that part of the order. The contention of the appellant Company is, therefore, rejected.
(emphasis added)
In the case of Shalini Shyam Shetty (supra), their Lordships of the Supreme Court took the view that jurisdiction under Article 227 is neither
original nor it is appellate. It is for both administrative and judicial superintendence. A proceeding under Article 227 could never be governed
under the original side rules of the High Court. In the cases where the High Court exercises jurisdiction under Article 227, it is entirely discretionary
and it cannot be claimed as a matter of right and no appeal would be maintainable from an order passed by a Single Judge of a High Court in
exercise of power under Article 227, which remedy is available in respect of an order passed by learned Writ Court under Article 226 of the
Constitution. (See paras 46 to 48).
Their lordships of Hon'ble the Supreme Court has still taken a similar view in the case of Kesho Ram (supra) in which appeal was filed against an
order of the High Court of Jammu & Kashmir. A Division Bench of this Court had held that no letter patent appeal against an order passed in
exercise of revisional jurisdiction would be available. Accordingly appeal was dismissed which led to the filing of further appeal to the Supreme
Court. The view of the Supreme Court is discernible from paras 6, 7 and 8, which read thus:-
Dr. Singhvi, on the other hand, has pointed out that an order rejecting an application in review was not appealable and the only remedy for
having such an order set aside was to file an application for review under order 47 Rule 7(2), but when such an application had been dismissed, no
further application could be entertained by virtue of Order 47 Rule 9 CPC. He has also stressed that a perusal of Clause 12 of the Letters Patent
also spelt out that an order in revision was not appealable under the said clause and that in any case, it was open to the appellant to challenge the
order dated 8-9-1987, in appeal.
We have heard the learned counsel for the parties very carefully. We find substance in Mr. Singhvi's argument based on Order 47 Rule 7(2) but
as of today, the prime issue before us is with regard to the maintainability of the letters patent appeal. A bare perusal of Clause 12 reveals that an
appeal against an order in revision is not maintainable.
We are, therefore, of the opinion that all the observations/findings recorded by the Letters Patent Bench were non est being completely
unauthorized in law. We have therefore no hesitation in dismissing the present appeal as well............................................................ We,
however, dismiss the appeal. No costs.
(emphasis added)
The aforesaid authoritative pronouncements by Hon'ble the Supreme Court have binding effect under Article 141 of the Constitution of India
as it is law declared by the Supreme Court. Therefore, the conclusion is evident that the appeal is not maintainable. The judgment of the Division
Bench rendered in the case of Sudershana Gupta and Others Vs. Girdhari Lal--> or any other judgment to the contrary are held to be per incuriam
and cannot have a binding force.
Clause 12 of the Letters Patent came up for consideration before another Division Bench of this Court in the case of The J. and K. Co-
operative Bank Vs. Shams-ud-din Bacha, . The Division Bench also took the view that the Letters Patent Appeal was not maintainable against an
order passed in exercise of jurisdiction under Article 227 of the Constitution of India or Section 104 of the Constitution of J&K and proceeded to
observe as under:-
The above provision of the Letters Patent clearly excludes an appeal from an order made by a Single judge of the court in exercise of his
revisional jurisdiction, as also an appeal from a sentence or order passed or made by him in exercise of his power of superintendence. An order
passed under S.104 of the Constitution of Jammu and Kashmir is nothing but an order made in exercise of the supervisory jurisdiction conferred
on the court by the Constitution. In these circumstances. Cl. 12 of the Letters patent excludes appeals from such orders.
(emphasis added)
The view of the Division Bench is consistent with the view taken by Hon'ble the Supreme Court in various judgments referred above. In Shalini
Shyam Shetty and Another Vs. Rajendra Shankar Patil, , their Lordships of the Supreme Court proceeded to hold that the letters patent appeal
against the order passed under revisional/supervisory jurisdiction was not maintainable. After considering its earlier judgments, their Lordships of
the Supreme Court formulated various principles to conclude that dispute relating to property seeking declaration cum permanent prohibitory
injunction would involve disputed questions of fact and petitions relating to such disputes cannot be entertained by the High Courts under Article
226 or under Article 227 of the Constitution of India. The learned Single Judge in this case has passed the impugned order under Article 227 of
the Constitution and the proper remedy for the appellant would be to file Special Leave Petition instead of invoking Clause 12 of the Letters
Patent. When the aforesaid principles are applied to the facts of the present case it becomes evident that no letters patent appeal would be
competent against an order passed by a learned Single Judge in exercise of jurisdiction under Section 104 of the Constitution of Jammu and
Kashmir read with Article 227 of the Constitution of India. Once that position is clear then we do not feel the necessity of deciding any other
argument raised by learned counsel for the parties. Therefore, both the appeals are dismissed along with various connected applications.