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Judgment
Manlsana, J.—In this appeal from an order of the leaned Single Judge made on 10.6.93 in civil Rule No. 167 or 1993 vacating the interim order dated 21.5.93 staying the notification dated 4.1.93 u/s 6(1) of the Land Acquisition Act, the short question which arises for consideration is whether an appeal shall lie from an interlocutory order made by a Single Judge in a proceeding under Article 226 of the Constitution.
Sri B.K. Goswami, learned Counsel for the Appellants, has contended that, if the interlocutory order is a judgment within the meaning of Clause 15 of the Letters Patent of 1865, an appeal shall lie against that order.
Rule 2 of Chapter V-A of the Gauhati High Court Rules provides, inter alia, that every petition under Article 226 of the Constitution of India shall be heard by a Single Bench except where the Chief Justice otherwise directs; and that an appeal from a judgment and order of Single Judge disposing of an application shall lie to the Division Bench. The said rule for exercise of power to dispose of a petition under Article 226 of the Constitution has been made under Article 225 of the Constitution of India.
Relevant portion of Article 225 of the Constitution is as follows:
jurisdiction of existing High Courts.--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 the jurisdiction of, and the law administered in, any existing High Court, and the respective powers of the Judges thereof in relation to the administration of justice in the Court, including any power to make rules of Court and to regulate the sittings of the Court and of member thereof silting alone or in Division Courts shall be the same as immediately before the commencement of this Constitution:
The opening words of Article 225 "subject to the provisions of the Constitution and to the provisions of any law of the appropriate legislature made by virtue of the powers conferred on that legislature by the Constitution" mean that Article 225 is subject to what is provided in the Constitution and any law made by appropriate legislature.
Letters Patent for Calcutta is applicable to this High Court by force of Assam High Court Order, 1948. Relevant portion of Clause 15 of the Letters Patent may be extracted thus:
...And we do further ordain that an appeal shall lie to the said High Court...from the judgment (not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court and not being an order made in the exercise of revisional jurisdiction) ...of one judge of the said Court or...pursuant to Section 108 of the Government of India Act,...
(Emphasis added)
On a reading of Clause 15 of the Letter Patent, it appears that first appeal shall lie to a Division Bench from the judgment of one judge on the original side of the High Court if the judgment is one given u/s 108 of the Government of India Act, 1915 (now Article 226).
At this stage, it would be helpful to refer to a decision of the Supreme Court in Umaji Keshao Meshram and Others Vs. Radhikabai and Another, In that case, the court considered the question, whether an appeal shall lie from the judgment of a Single Judge in a proceeding under Article 226 of the Constitution of India, under Clause 15 of the Letters Patent for Bombay. In paragraph 61, it was stated:
The Letters Patent of the Madras and Bombay High Courts were mutatis mutandis in identical terms with the Letters Patent of the Calcutta High Court.
In para 91, it was stated thus:
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 of the jurisdiction exercised by the single Judge while passing his judgment, provided an appeal is not barred by any statute....
At para 93, it was observed:
Thus, by the combined operation of Section 38(1) of the Interpretation Act and Section 8 of the General Clauses Act, the expression ''pursuant to Section 223 of the Government of India Act, 1935, which was deemed to have been substituted for the expression ''pursuant to Section 108 of the Government of India Act'' in Clause 15 of the Letters Patent is, on the commencement of the Constitution, to be read as ''pursuant to Article 225 of the Constitution.
In para 96, it was stated:
The power to make rules for the exercise of jurisdiction under Articles 226 and 227 by the existing High Courts is contained in Articles 225 only.
At para-98, it was held thus:
From what has been said above it must follow that when a single Judge of a Chartered High Court decides a petition under Article 226 or 227, his judgment is one given pursuant to Article 225 of the Constitution and is appealable under Clause 15 of the Letters Patent unless it falls within one of the excluded categories.
(Emphasis supplied)
At para-101, it was held:
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 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 infra-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.
The principles laid down by the Supreme Court the above cited case may be summarised as follows. Section 108 of the Government of India Act, 1915, is to be read as Article 225 of the Constitution, and the power to make rules for the exercise of jurisdiction under Article 225 of the Constitution by a single Judge of High Court is under Article 225 of the Constitution. If the rules made by the High Court in the exercise of power conferred on it under Article 225 of the Constitution provide that a petition under Article 226 will be heard by a single Judge, his judgment is one given pursuant to Section 108 of the Government of India Act, 1915, and, therefore, an appeal shall lie to a Division Court from the judgment of a single Judge under Clause 15 of the Letters Patent, provided the appeal is not barred by any Statute.
Keeping the above principles in view, let us now examine the case on hand. As already stated, the High Court Rules provide that every petition under Article 226 shall be heard and disposed of by a single Judge except where the Chief Justice otherwise directs, and the rules have been made under Article 225 of the Constitution. Therefore, if a single Judge decides a petition under Article 226 of the Constitution of India, his judgment is one given pursuant to Section 108 of the Government of India Act, 1915 (now Article 225 of the Constitution) and an appeal shall lie from that order under Clause 15 of the Letters Patent. Therefore, if an order made by a single Judge is a judgment within the meaning of Clause 15 of the Letters Patent, an appeal shall lie from the order of a single Judge, under Clause 15 of the Letters Patent, to a Division Court, as appropriate Legislature has, expressly or by implication, not taken, away the right of appeal.
The question then is,--Whether the order refusing or granting to stay the notification u/s 6(1) of the Land Acquisition Act is a judgment within the meaning of Clause 15 of the Letters Patent.
In Shah Babulal Khimji Vs. Jayaben D. Kania and Another, a question arose for consideration whether a single Judge sitting on the original side of the Bombay High Court dismissing an application for appointment of interim receiver and the grant of interim injunction is a judgment within the meaning of Clause 15 of the Letters Patent. A three-Judge Bench, after considering various authorities, held:
In the instant case, as the order of the trial Judge was one refusing appointment of a receiver and grant of an ad-interim injunction, it is undoubtedly a judgment within the meaning of the Letters Patent both because in view of our judgment, Order 43, Rule 1 applies, to internal appeal in the High Court and apart from it such an order even on merits contains the quality of finality and would therefore be a judgment within the meaning of Clause 15 of the Letters Patent.
The Court also observed that "every interlocutory order cannot be regarded as a judgment but only those orders would be judgments which decide matter of moment or affecting vital and valuable rights of the parties and which work serious injustice to the parties concerned".
In Shah Babulal''s case, the Court, in paragraph 120, gave illustrations of interlocutory orders which may be treated us judgments within the meaning of Clause 15 of the Letters Patent One of the illustrations: "An order granting or refusing to stay of execution of the decree". It may be stated here that in Shree Chamundi Mopeds Ltd. Vs. Church of South India Trust Association CSI Cinod Secretariat, Madras, the Supreme Court observed:
While considering the effect of an interim orders staying the operation of the order under challenge, a distinction has to be made between quashing of an order and stay of operation of an order. Quashing of an order results in the restoration of the position as it stood on the date of the passing of the order which has been quashed. The stay of operation of an order does not however, lead to such a result. It only means that the order which has been stayed would not be operative from the date of the passing of the stay order and it does not mean that the said order has been wiped out from existence.
Therefore, an order refusing or granting stay of implementation of the impugned notification would affect the right of a party, it may be for a moment or brief period of time, and the principles underlying the illustration above may be extended to an interlocutory order in a proceeding under Article 226 of the Constitution of India. This being the position, the impugned interim order is a judgment within the meaning of Clause 15 of the Letters patent and hence it is appealable. Accordingly, the appeal is maintainable.