Regional Passengers Association vs Haripal Jangipur Rajbalhat Bus Syndicate

M.N. Roy, J.—The appeal, in which this application for appropriate interim order has been filed, was presented on July 25, 1988, against the judgment and order passed in CO. No. 11767(W) of 1987, by a learned single Judge pf this Court.

On such presentation, the Stamp Reporter has opined that the appeal has been filed in time calculating the period of limitation as 60 days. Such report has been made on the basis of an order dated February 14, 1989, made in an application for stay which was filed on November 29, 1988, in F.M.A.T. No. 3695 of 1988 and where a. Division Bench of this Court, following the determinations in the case of Rabindra Nath Chakraborty v. Union of India and Ors. 1976 C.H.N. 515 has observed that the period of limitation for filing appeal from a judgment in a writ petition, under the provisions of Clause 15 of the Letters Patent, the Limitation Act, 1963, or the Appellate Side Rules, would be 60 days.

Since a point arose as to what should be the period of limitation and whether the same should be 30 or 60 days, Mr. Malay Kumar Basu, a learned Advocate of this Court was requested to act as amicus curiae, to help and assist this Court and such order was made on December 13, 1989.

The fact that the appeal in which the present application has been filed, was presented beyond 30 days and without the certified copy of the judgment is not in dispute. In fact, under the rules, such an appeal without the certified copy of the judgment can be filed within the period of limitation and Rule 48 of the Rules of this Court relating to disposal of applications under Article 226 of the Constitution of India, requires that appeals from orders in this jurisdiction shall be made in the same manner as appeals from orders in the Original Side and appeals from orders in the Appellate Side accordingly as they arise out of ''Original Side'' and ''Appellate Side'' applications and all Rules applicable thereto in the Rules of the Original and Appellate Side, respectively, shall apply thereto mutatis mutandis. Provided that unless the Court otherwise directs, no prayer for any interim order shall be entertained unless a copy of an application for such an interim order has been served upon a party, who has lodged a caveat in the form and manner as may be prescribed and given an opportunity of being heard. Under Article 117 of the Limitation Act, 1963, the period of limitation for such is 30 days from the decree or order of any High Court to the same Court and the necessary period of limitation under the said Article will commence running from the date of the decree or order. In the case of Rabindra Nath Chakravorty v. Union of India (Supra) an appeal from judgment passed on an application under Article 226 of the Constitution was filed. The Stamp Reporter made a note that the appeal had been filed out of time by 198 days. Article 117 of the Limitation Act, 1963, provides that appeal from a decree or order of any High Court to the same Court is to be filed within 30 days from the date of the decree or order. Rule 2 of Chap. VIII of the Appellate Side Rules, in respect of appeals under Clause 15 of the Letters Patent, prescribes a period of 60 days. The question was whether the provisions of the Limitation Act or the Rules of the High Court will apply and it has been held that according to the provisions of Section 29(2) of the Limitation Act, 1963, where the special law prescribes any period of limitation for an appeal the same shall apply to the exclusion of the period of limitation prescribed by the Limitation Act. In this case, Rule 2 of Chap. VIII of the Appellate Side Rules prescribes a period of limitation for filing of Letters Patent Appeals and the same will apply and Article 117 of the Limitation Act will have no application to the instant appeal, apart from indicating that the provisions of Sections 4 to 24 of the Limitation Act have not been excluded, by Rule 2 of Chap. VIII of the Appellate Side Rules and as such, the said provisions will apply. u/s 12 of the Limitation Act, the time requisite for obtaining a copy of the decree or order appealed from shall be excluded. The copy was ready for delivery on March 16, 1975, which was a Sunday and the appeal was filed on Monday i.e. March 17, 1975, the appeal, therefore, was not filed out of time.

The above determination was scrutinised in the case of Patai Sheikh v. State of West Bengal 1976 C.H.N. 578 where, dealing with Article 117 of the Limitation Act, 1963, Chap. VIII Rule 2 of the High Court Appellate Side Rules and Clause 15 of the Letters Patent, while considering what should be the period of limitation, it has been found that an appeal from a decision made by a Single Judge on an application under Article 226 of the Constitution was filed. The memorandum of appeal was returned by the Stamp Reporter on the ground that it was presented 33 days after the expiry of the period of limitation, that is, 30 days as filed by Article 117 of the Limitation Act, 1963. The Appellants, thereafter, presented an application u/s 5 of the Limitation Act, whereupon the instant Rule was issued. It was contended that the appeal was not barred by limitation inasmuch as Chap. VIII, Rule 2 of the Appellate Side Rules prescribes 60 days, within which such an appeal is to be filed, arid on such observations it has been held that an appeal from a judgment of a single Judge under Article 226 of the Constitution is governed by the first part of Clause 15 of the Letters, Patent. This being a judgment in the exercise of original jurisdiction of the Court, it would be governed by Article 117 of the Limitation Act, 1963, in the absence of any specific provisions, apart from indicating that it is clear beyond doubt that Rule 2 of Chap. VIII of the Appellate Side Rules applies to second appeals and not to an appeal from a judgment of a single Judge within the meaning of the first part of Clause 15 of the Letters Patent. Accordingly, it was considered that the appeal in question was barfed by limitation in view of the provisions of Article 117 of the Limitation Act. In the above decision the earlier Division Bench judgment in Rabindra Nath Chakravarti v. Union of India and Ors. (Supra) as mentioned earlier, was considered and the decision as referred to hereinbefore, has observed that the earlier Bench decision, which held the contrary view, came to such conclusion without reference to the Special Bench decision in the case of Chairman, Budge Budge Municipality Vs. Mongru Mia and Others, That was a Special Bench judgment and the learned Judges, whose decision could be considered to be of a very high authority, had observed by majority that there was nothing in Article 226 of the Constitution to exclude an appeal within the High Court from a High Court from a judgment given under that Article by a Single Judge of the High Court and a judgment of a Single Judge on an application under Article 226 of the Constitution in a matter arising within the Original Jurisdiction or in a matter arising within the Original Jurisdiction or in a matter arising outside, is a judgment pursuant to Section 108 of the Government of India Act. 1915 and is appealable under Clause 15 of the Letters Patent, apart from indicating that by virtue, first, of Section 38(1) of the Interpretation Act, 1889, which applied to the Government of India Act, 1935 and then, of Section 8 of the General Clauses Act, which applied to the Constitution, the reference to Section 108 of the Government of India Act in Clause 15 of the Letters Patent, must now be construed as a reference to Article 225 of the Constitution. The words ''subject to'' in Article 225 of the Constitution are not merely restrictive of the jurisdiction and rule-making power of the existing High Courts, but connote enlargements of or additions of them as well. Certain enlargements of jurisdiction have been made by the Constitution itself in Articles 226 and 227 and future enlargements of territorial jurisdiction are contemplated by Article 230. Accordingly, the jurisdiction conferred by Article 226 is a jurisdiction within Article 225 and therefore, in so far as jurisdiction is concerned, a judgment given in exercise of the jurisdiction conferred by Article 226 is judgment pursuant to Article 225. The nature and limits of the power given by Article 225 to make rules for the regulation and distribution of the business of the Court must be sought ultimately in Section 108 of the Government of India Act, 1915. The power conferred by Section 108 of the Government of India Act, 1915, is power to frame rules for the exercise of all jurisdictions, whether at the date of Act of 1915 or subsequently or has been preserved by Article 225 of the Constitution, a judgment of a single Judge in exercise of the jurisdiction conferred by Article 226 is, even in respect of the rule assigning such jurisdiction to him, a judgment pursuant to Section 108 or Article 225. The said Special Bench has also indicated that Section 108(2) of the Government of India Act, 1915, is the only provision which empowers the Chief Justice to determine what Judge shall sit singly and what Judges shall constitute Division Courts. Outside Section 108(2) of the Government of India Act, 1915, now Article 225, there never, was and there is not now any other provision which gives power to the Chief Justice to nominate from time to time particular Judges for particular Courts or Benches and the argument that Clause 15 of the Letters Patent only contemplates judgments given in the exercise of one or other of the jurisdiction specifically mentioned in the Letters Patent is unsustainable and has further observed that the contention that, in order to come under Clause 15 of the Letters Patent, a judgment must be one given in exercise of a jurisdiction existing at the date of Government of India Act, 1915, or at the date of Government of India Act, 1935, is untenable.

The said determination has also indicated that in exercising jurisdiction under Article 226 of the Constitution, the High Courts do not act as special Tribunals. The High Courts function as ordinary Courts and it is only the procedure in respect of matter lying within their ordinary jurisdiction and the form of relief that may be given which are changed. There is thus no reason why an appeal should not lie from a judgment given in exercise of the jurisdiction under Article 226, if under the rules the existing Courts new or wider powers of giving relief is a very different thing from a Statute referring some special kind of dispute to established Courts and decisions bearing on the latter class of cases are altogether beside the point and that the issue of cases are altogether beside the point and that the issue of writs contemplated by Article 226, in exercise of original jurisdiction. It is not original in the limited and technical sense of ordinary original civil jurisdiction of the Letters Patent, which carries certain territorial limits, but it is original as distinguished from appellate. The jurisdiction cannot be revisional, because it is not connected with revising any order of a Court subordinate to the High Court as contemplated by Section 115 of the Code of Civil Procedure, nor does it appertain to the general power of superintendence conferred by Section 107 of the Government of India Act, now Article 227, apart from indicating that the period of limitation for an appeal from a judgment of a single Judge, given in the exercise of jurisdiction under Article 226 is governed by Article 151 of the Limitation Act and is 20 days from the date of the order. It has also been indicated there that in matters in the nature of high prerogative writs, it is desirable to be precise as to the case which the opposite party is called upon to answer and the existence of an alternative remedy is not an absolute bar against an application for a writ or order under Article 226 of the Constitution.

Apart from the Special Bench judgment of this Court, the learned Judges in the case of Patai Sheikh v. State of West Bengal (Supra) have also referred to the cases of The Union of India (UOI) Vs. Ram Kanwar and Others, and AIR 1972 1935 (SC) while dissenting from the earlier Division Bench judgment in the case of Rabindra Nath Chakravorti v. Union of India and Ors. (Supra).

Apart from the above cases, which were cited by Mr. Malay Kumar Basu, another Division Bench judgment, in the case of Golak Behari Mitra and Ors. v. G.G.S. Brothers 1978 C.H.N. 964 which also dealt with Clause 15 of the Letters Patent, Article 117 of the Limitation Act, 1963, arid Chap. VIII, Rule 2 of the Appellate Side Rules, was cited, in which case the delay in filing appeal one of tie questions was in issue and the consideration was if sue delay can be condoned by the single Judge while condoning delay in presentation of long leave application. In that case, a Second Appeal was allowed by a learned single Judge by his judgment dated April 27, 1973. Being aggrieved, the Appellants filed on November 23, 1973, an application for leave under Clause 15 of the Letters Patent on condonation of delay. A Rule thereupon had been issued and the same was made absolute, that is, leave was granted on April 21, 1975 and the memorandum of the Appeal was presented on April 29, 1975. The Stamp Reporter made a report on August 11, 1978, that the memorandum had been filed 8 days beyond time inasmuch as the delay from the date of the judgment till the date when taken by the Stamp Reporter was challenged by the Appellant, the Additional Registrar referred the question for a decision of the Court. It was contended that the limitation should be calculated from the date, the leave was granted and not earlier, because no appeal could have been presented without such leave. It has been held, neither Rule 2, Chap. VIII of the Appellate Side Rules nor Article 117 of the Limitation Act provides that the limitation is to be calculated from the date the leave is granted. On the other hand, those provisions are clear and very specific that such limitation is to be counted from the date of the judgment and the date of the decree or order appealed from. It is true one has to obtain a certificate of fitness from the learned single Judge in preferring such appeal. But, it is now a settled principle that for the said purpose the time required for obtaining the leave or the certificate is to be excluded in calculating the limitation. But the limitation must be calculated from the date of the judgment or the date of the decree or the order appealed for and it has also been indicated that the appeal under Clause 15 lies to the Division Bench and it was for Division Bench to condone the delay if there exists, in the opinion of the Division Bench, sufficient cause for such condonation. The learned single Judge had neither the jurisdiction nor did he condone the delay in the matter of the application for leave only was condoned by His lordship. This appeal on the date it was presented, was out of time by one year ten months and seven days. We have only referred to the above determination, as the same was cited, even though the same has really no direct bearing to the point in issue.

Unfortunately, the relevant decisions, excepting the decision in the case of Rabindra Nath Chakravorti v. Union of India (Supra) were not cited before the learned Division Bench, which made the order in Madhab Chandra Das and Ors. v. State of West Bengal and Ors. Unreported decision in F.M.A.T. No. 3695 of 1988. In view of the position in law, as indicated above, we feel inclined to agree with the determinations, as made in the case of Patai Sheikh v. State of West Bengal (Supra) and hold under Article 117 of the Limitation Act, 1963 and the Rules of our Court for determination of matters under Article 226 of the Constitution of India, the period of limitation in an appeal of the present nature cannot be 60 days, but the same is 30 days. The Rules framed for determination under Article 226 and Chap. VIII, Rule 2 of the Appellate Side Rules were in the same language and terms at the time, of determination of Patai Sheikh''s case (Supra).

Thus, we reject this application for stay holding, inter alia, amongst others that such order should be made, as the appeal itself was not maintainable and the same was filed out of time.

A point arose as to whether, in view of the determinations, as indicated earlier, we should refer the case for determination by a still larger Bench and after hearing the parties, who contended that since there is a Special Bench judgment of such high authority as indicated earlier, there is no need or any necessity of referring the case to a still larger Bench. We agree to such submissions. Even in spite of our holding as above, if any administrative difficulty is fell, the learned Chief Justice may think of or consider the question of having the point decided by a still larger Bench.

Above being the position, we reject this application and hold that the appeal was filed out of time. Such delay for filing the appeal could have certainly been asked to be condoned on proving and establishing appropriate and substantial cause and we keep it on record that the Appellant may take recourse to such procedure, if so advised.

While making this order we further keep it on record that we have not gone into the merits of the respective contentions and/or points, excepting the point of limitation as indicated earlier and all other points are kept open.

Before we conclude, we must keep it on record, our high appreciation'' for the help and assistance which Mr. Basu has rendered and that too at our request.

There will be no order as to costs.

Sunil K. Guin J.

I agree.