LAW FOR ALL

Tuesday, March 28, 2017

(i) whether the allegations of bribery levelled in the alleged Compact Disc (CD) are correct, (ii) whether Change of Land Use (CLU)/Licence was granted in pursuance of these allegations, and (iii) whether by such act, any illegality was committed. The said reference was registered as Complaint No. 773 of 2013 in the office of the Lokayukta, Haryana.= the writ petition was filed under Article 226 of the Constitution for quashing of the recommendation of the Lokayukta. The said recommendation would have led to launching of criminal prosecution, and, as the factual matrix reveals, FIR was registered and criminal investigation was initiated. The learned Single Judge analysed the report and the ultimate recommendation of the statutory authority and thought it seemly to quash the same and after quashing the same, as he found that FIR had been registered, he annulled it treating the same as a natural consequence. Thus, the effort of the writ petitioner was to avoid a criminal investigation and the final order of the writ court is quashment of the registration of FIR and the subsequent investigation. In such a situation, to hold that the learned Single Judge, in exercise of jurisdiction under Article 226 of the Constitution, has passed an order in a civil proceeding as the order that was challenged was that of the quasi- judicial authority, that is, the Lokayukta, would be conceptually fallacious. It is because what matters is the nature of the proceeding, and that is the litmus test. In view of the aforesaid prismatic reasoning, the irresistible conclusion is that the Letters Patent Appeal was not maintainable before the Division Bench and, consequently, the order passed therein is wholly unsustainable and, accordingly, it is set aside. However, as the State had been diligently agitating its grievance in a legal forum which it thought had jurisdiction, we grant liberty to the State to assail the order of the learned Single Judge in accordance with law.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4288 OF 2017
(arising out of S.L.P. (Civil) No. 15362 of 2016)

Ram Kishan Fauji ... Appellant

Versus

State of Haryana and Ors. ... Respondents

J U D G M E N T

Dipak Misra, J.

Leave granted.

2. The Chief Secretary to the Government of Haryana in exercise of power
under Section 8(1) of the Haryana Lokayukta Act, 2002 (for brevity, “the
Act”) made a reference to the Lokayukta, Haryana to enquire into the
allegations, namely, (i) whether the allegations of bribery levelled in the
alleged Compact Disc (CD) are correct, (ii) whether Change of Land Use
(CLU)/Licence was granted in pursuance of these allegations, and (iii)
whether by such act, any illegality was committed. The said reference was
registered as Complaint No. 773 of 2013 in the office of the Lokayukta,
Haryana.

3. Acting on the reference made by the Chief Secretary, the office of
the Lokayukta issued a public notice requesting the public in general to
send any such material including Video Compact Disc (VCD) connected with
the subject in issue. Apart from the public notice, communications were
sent to various departments of the Government, television channels and
newspapers for furnishing all materials to find out the allegations of
corruption against the persons who have been named in the complaint.

4. As the facts would unfold, the Lokayukta, Haryana, issued notice to
the appellant in exercise of power under Section 14 of the Act to offer his
explanation. In pursuance of the said communication, the appellant filed a
reply and the Lokayukta granted him time to place on record his evidence in
the form of an affidavit. When the matter stood thus, on 16.01.2014, two
persons allegedly conducted a sting operation and filed their affidavits
before the Lokayukta. The appellant, in the meantime, got the CD examined
from M/s Truth Labs, Bangalore and also got the forensic examination of the
audio and a report was submitted on 20.01.2014 opining, as averred, that
the audio and video recording in the earlier CD was not continuous and the
recording did not appear to be authentic. Be that as it may, on weighing
the material brought on record, the Lokayukta thought it appropriate to
recommend for registration of FIR for offences punishable under the
provisions of the Prevention of Corruption Act, 1988 (for short, “the 1988
Act”) and investigation by a senior competent officer of impeccable
integrity.

5. At this stage, it is necessary to mention that the appellant had
preferred Civil Writ Petition No. 4554/2014 (O&M) praying for issue of a
writ in the nature of certiorari for quashing of the impugned orders dated
20.01.2014 and 11.02.2014 passed by the respondent No. 2 whereby it had
recommended registration of a case against the petitioner therein under the
provisions of the 1988 Act and further for issue of a writ or direction in
the nature of mandamus restraining the respondent No. 1 from initiating any
consequential proceeding on the basis of the impugned orders. The grounds
asserted for the assail were that there was no verification of the
genuinity of the alleged VCD and that the action taken was perverse,
illegal, arbitrary and violative of the provisions of the Act.

6. The High Court, vide order dated 14.03.2014, directed the respondent
State to inquire into the authenticity of the CD in question and file a
status report in the Court and further directed that the State shall be
bound by the judgment of Lalita Kumari v. Govt. of Uttar Pradesh and
others[1] with reference to the preliminary enquiry to be conducted in
respect of corruption cases. A reply was filed before the High Court on
03.12.2014 and FIR No. 10/2014 was registered at P.S. State Vigilance
Bureau, Panchkula on 04.12.2014 under Sections 7 and 8 of the 1988 Act.
Certain other documents were brought on record before the learned Single
Judge of the High Court and eventually. vide judgment dated 27.02.2015, the
learned Single Judge referred to various aspects such as the facts that led
to the complaint before the Lokayukta, the findings of the Lokayukta, the
initial endeavour by the High Court to gather details of the authenticity
of the CD, the contradictory report submitted by the writ petitioner from
private laboratory, he fresh report from Central Forensic Science
Laboratory (CFSL) to quell the contradiction, the law relating to the
admissibility of evidence of electronic record and, thereafter, it recorded
its conclusion on the issues pertaining to the authenticity of the CD,
credible information for bribery, direction for filing of complaint by the
Lokayukta, the report of the Lokayukta, the imputations made against the
petitioner, prima facie proof, the jurisdiction of the Lokayukta to cause
an inquiry and, ultimately, came to hold as follows:-

“I have undertaken this examination only to conclude all the issues which
were urged before me. The observations as regards the untenability
invoking the provision of Section 9 does not obtain relevance to us, for,
we have already found the report to be seriously flawed in every respect
both as regards the competence of the Lokayukta to order a registration of
a complaint after he found the reference in the negative that there was no
case made for allegations of corruption and that also the evidence of CD
which was taken to be the basis for a further investigation itself could
not be relied on, for, it lacks the basic element of authenticity.”

7. Being of this view, it proceeded to deal with the registration of the
complaint on the recommendation of the Lokayukta and, in that regard,
opined that:-

“The learned counsel for the State would submit that the investigation has
proceeded subsequent to the impugned order passed. A FIR has been
registered on 04.12.2014, that is, after the writ petition was filed, when
the issue of the authenticity of the CD was very much open for
consideration. Indeed, I had stayed the further proceedings when I passed
an order on 19.12.2014 directing the CD to be sent along with the memory
chip to the CFSL, Hyderabad. If the investigation is purported to be taken
by lodging a FIR, consequent on the directions given by the order which is
now quashed, it shall also be quashed.”

8. While so stating, the learned Single Judge ruled that if there is any
other material or information of corrupt practice against the writ
petitioner, the State shall be at liberty to carry out the investigation as
per law.

9. The aforesaid order came to be assailed in LPA No. 1426 of 2015. The
Division Bench, by order dated 15.12.2015, without issuing notice to the
present appellant, condoned the delay of 85 days in filing the appeal and
stayed the operation of the judgment passed by the learned Single Judge.
The appellant filed CM No. 3930/LPA of 2015 for vacation of the said
interim order and the Division Bench declined to vacate the interim order
and made it absolute on 12.05.2016 by the impugned order and after
admitting the LPA, passed the following order:-

“However, with a view to ensure absolute objectivity in the ongoing
investigation and to rule out any possibility of alleged prejudice against
respondent No.1, the Director General of Police, Haryana is directed to re-
constitute a Special Investigation Team comprising three senior IPS
officers who originally do not belong to the State of Haryana.

Liberty is granted to the parties to seek out-of-turn hearing of the appeal
after the investigation is over.”

10. Questioning the sustainability of the order passed by the Division
Bench, Dr. Rajeev Dhawan, learned senior counsel, has raised a singular
contention that the LPA preferred before the Division Bench was not
maintainable inasmuch as the learned Single Judge had exercised criminal
jurisdiction. He has placed reliance on certain authorities to which we
shall refer to at the relevant place in the course of our deliberations.

11. Mr. Sanjay Kumar Visen, learned counsel appearing for the respondent
State, resisting the aforesaid submission, would contend that the writ
petition was registered as a civil writ petition for the purpose of issuing
a writ of certiorari and the exercise of jurisdiction by the High Court is
civil in nature and, therefore, the jurisdiction exercised is civil
jurisdiction that invites interference in intra-court appeal. That apart,
contends Mr. Visen that the exercise of power of the learned Single Judge
is strictly under Article 226 of the Constitution of India and, hence, an
intra-court appeal deserved to be entertained by the Division Bench. It is
further submitted by him that the Lokayukta is a quasi-judicial body and
when, at its instance, action is taken for inquiry, it has to come within
the ambit and scope of civil jurisdiction and not criminal jurisdiction.
Learned counsel for the State has stressed on the status of Lokayukta and
for that matter has commended us to the authority in Justice
Chandrashekaraiah (Retd.) v. Janekere C. Krishna & others[2].

12. First, we intend to advert to the position of the Lokayukta or Upa-
Lokayukta as has been dealt with in Justice Chandrashekaraiah (supra). In
the said case, Radhakrishnan, J. ruled that Lokayukta and Upa-Lokayukta act
as quasi-judicial authorities, but their functions are investigative in
nature. Scrutinising the provisions enshrined under Sections 9, 10 and 11
of the Karnataka Lokayukta Act, 1984, he opined that the said authorities,
while investigating the matters, are discharging quasi-judicial functions,
but the nature of functions is investigative. The learned Judge, while
deliberating on the consequence of the report, ruled thus:-

“The Governor of the State, acting in his discretion, if accepts the report
of the Lokayukta against the Chief Minister, then he has to resign from the
post. So also, if the Chief Minister accepts such a report against a
Minister, then he has to resign from the post. The Lokayukta or Upa-
Lokayukta, however, has no jurisdiction or power to direct the Governor or
the Chief Minister to implement his report or direct resignation from the
office they hold, which depends upon the question whether the Governor or
the Chief Minister, as the case may be, accepts the report or not. But when
the Lokayukta or Upa-Lokayukta, if after the investigation, is satisfied
that the public servant has committed any criminal offence, prosecution can
be initiated, for which prior sanction of any authority required under any
law for such prosecution, shall also be deemed to have been granted.”

13. In the concurring opinion, Lokur, J. posed the question whether the
Lokayukta is a quasi-judicial authority. The argument on behalf of the
State was that Upa-Lokayukta is essentially required to investigate
complaints and enquire into the grievances brought before it and,
therefore, he may be exercising some quasi-judicial functions, but that
does not make him a quasi-judicial authority. The said submission was
advanced to highlight the proposition that when the Upa-Lokayukta is not a
quasi-judicial authority, the opinion of the Chief Justice of the High
Court of Karnataka would not have primacy in the appointment and
consultation process. After adverting to the powers and functions of Upa-
Lokayukta, it has been held that:-

“105. Section 14 of the Act enables the Upa-Lokayukta to prosecute a public
servant and if such an action is taken, sanction to prosecute the public
servant shall be deemed to have been granted by the appropriate authority.”

xxxxx xxxxx

“107. The broad spectrum of functions, powers, duties and responsibilities
of the Upa-Lokayukta, as statutorily prescribed, clearly bring out that not
only does he perform quasi-judicial functions, as contrasted with purely
administrative or executive functions, but that the Upa-Lokayukta is more
than an investigator or an enquiry officer. At the same time,
notwithstanding his status, he is not placed on the pedestal of a judicial
authority rendering a binding decision. He is placed somewhere in between
an investigator and a judicial authority, having the elements of both. For
want of a better expression, the office of an Upa-Lokayukta can only be
described as a sui generis quasi-judicial authority.”

“108. ……The final decision rendered by the Upa-Lokayukta, called a report,
may not bear the stamp of a judicial decision, as would that of a court or,
to a lesser extent, a tribunal, but in formulating the report, he is
required to consider the point of view of the person complained against and
ensure that the investigation reaches its logical conclusion, one way or
the other, without any interference and without any fear. Notwithstanding
this, the report of the Upa-Lokayukta does not determine the rights of the
complainant or the person complained against. Consequently, the Upa-
Lokayukta is neither a court nor a tribunal. Therefore, in my opinion, the
Upa-Lokayukta can best be described as a sui generis quasi-judicial
authority.”

14. After so stating, the learned Judge referred to the opinions of
Kania, CJI and Das, J. in Associated Cement Companies Ltd. v. P.N.
Sharma[3] and arrived at the following conclusion:-

“As mentioned above, an Upa-Lokayukta does function as an adjudicating
authority but the Act places him short of a judicial authority. He is much
more “judicial” than an investigator or an inquisitorial authority largely
exercising administrative or executive functions and powers. Under the
circumstances, taking an overall view of the provisions of the Act and the
law laid down, my conclusion is that the Upa-Lokayukta is a quasi-judicial
authority or in any event an authority exercising functions, powers, duties
and responsibilities conferred by the Act as a sui generis quasi-judicial
authority.

15. The aforesaid pronouncement was rendered when the appointment of Upa-
Lokayukta was challenged on the ground that one of the constitutional
functionaries was not consulted. Emphasis was on the nature of the post
held by Lokayukta or Upa-Lokayukta.

16. The aforesaid paragraphs would clearly show that neither the
Lokayukta nor Upa-Lokayukta has any jurisdiction or authority to direct
implementation of his report by the constitutional functionary but when
after investigation, it is found that the public servant has committed any
criminal offence, prosecution can be initiated for which prior sanction of
any authority is required under any law for such prosecution and the same
shall be deemed to have been granted.

17. Relying on the aforesaid judgment, it is submitted by Mr. Visen that
when the posts held by Lokayukta and Upa-Lokayukta are quasi-
judicial in nature, their functioning has to be given the same character
and once they are clothed with such functioning and action taken by them is
subject to challenge before the High Court under Article 226 of the
Constitution seeking a writ of certiorari for quashment of the same, in
that event, the adjudication has to be regarded as civil in nature.
Elaborating further, he would submit that in the instant case, a civil writ
was filed challenging the opinion and recommendation of the Lokayukta and,
therefore, the jurisdiction sought to be exercised is under Article 226 of
the Constitution of India and resultantly, the order passed by the learned
Single Judge is amenable to correction in intra-court appeal.

18. The maze needs to be immediately cleared. In the instant case, we
are really not concerned with the nature of the post held by Lokayukta or
Upa-Lokayukta. We are also not concerned how the recommendation of the
said authorities is to be challenged and what will be the procedure
therefor. As has been held by this Court, neither the Lokayukta nor Upa-
Lokayukta can direct implementation of his report, but it investigates and
after investigation, if it is found that a public servant has committed a
criminal offence, prosecution can be initiated.

19. Having discussed as aforesaid, at this juncture, reference to Clause
10 of the Letters Patent (as applicable to erstwhile Punjab & Lahore High
Courts) is absolutely apposite. It reads as follows:-

“10. Appeals to the High Court from Judges of the Court – And we do further
ordain that an appeal shall lie to the said High Court of Judicature at
Lahore 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, and not being a sentence or order passed or made in exercise
of the power of superintendence under the provisions of Section 107 of the
Government of India Act, or in the exercise of criminal jurisdiction) of
one Judge of the said High Court or one Judge of any Division Court,
pursuant to Section 108 of the Government of India Act, and that
notwithstanding anything hereinbefore provided an appeal shall lie to the
said High Court from a judgment of one Judge of the said High Court or one
Judge of any Division Court, pursuant to Section 108 of the Government of
India Act, made on or after the first day of February, one thousand nine
hundred and twenty-nine 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 where the
Judge who passed the judgment declares that the case is a fit one for
appeal; but that the right of appeal from other judgments of Judges of the
said High Court or of such Division Court shall be to Us, Our Heirs or
Successors in Our or Their Privy Council, as hereinafter provided.”
[emphasis added]

20. On a plain reading of the aforesaid clause of the Letters Patent, it
is manifest that no appeal lies against the order passed by the Single
Judge in exercise of criminal jurisdiction. Thus, the question that is
required to be posed is whether the learned Single Judge, in the obtaining
factual matrix has exercised criminal jurisdiction or not.

21. Presently, we may fruitfully refer to Clauses 15, 17 and 18 that
deal with criminal jurisdiction. Clause 15 that provides for ordinary
criminal jurisdiction of the High Court reads as under:-

“15. And We do further ordain that the High Court of Judicature at Lahore
shall have ordinary original criminal jurisdiction in respect of all such
persons within the Provinces of Punjab and Delhi as the Chief Court of the
Punjab had such criminal jurisdiction over immediately before the
publication of these presents.”

22. Clauses 17 and 18, being pertinent, are extracted below:-
“17. And We do further ordain that the High Court of Judicature at Lahore
shall have extraordinary original criminal jurisdiction over all persons
residing in places within the jurisdiction of any Court subject to its
superintendence, and shall have authority to try at its discretion any such
persons brought before it on charges preferred by any magistrate or other
officer specially empowered by the Government in that behalf.

18. And We do further ordain that there shall be no appeal to the High
Court of Judicature at Lahore from any sentence or order passed or made by
the Courts of original criminal jurisdiction which may be constituted by
one or more Judges of the said High Court. But it shall be at the
discretion of any such court to reserve any point or points of law for the
opinion of the said High Court.”
[underlining is ours]

23. It is worthy to mention here that Clause 10 of the Letters Patent
establishing the Lahore High Court (which is applicable to the Hon’ble
Punjab & Haryana High Court) is in pari materia to Clause 15 of the Letters
Patent of the Chartered High Courts. The four-Judge Bench, in South Asia
Industries Private Ltd v. S.B. Sarup Singh and others[4], speaking through
Subba Rao, J. (as His Lordship then was) referred to Clauses 10 and 11 of
the Letters Patent and, in that context, ruled:-

“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. As the
clause then stood, it would appear that an appeal lay against the judgment
of a single Judge of the High Court made in exercise of second appellate
jurisdiction without any limitation thereon. The effect of the amendment
made in 1928, so far as is relevant to the present enquiry, is the
exclusion of the right of appeal from a judgment passed by a single Judge
sitting in second appeal unless the Judge who passed the judgment grants a
certificate that the case is a fit one for appeal.”
[Emphasis added]

The Court in the said case after referring to number of authorities
also observed:-

“A statute may give a right of appeal from an order of a tribunal or a
Court to the High Court without any limitation thereon. The appeal to the
High Court will be regulated by the practice and procedure obtaining in the
High Court. Under the rules made by the High Court in exercise of the
powers conferred on it under s. 108 of the Government of India Act, 1915,
an appeal under s. 39 of the Act will be heard by a single Judge. Any
judgment made by the single Judge in the said appeal will, under cl. 10 of
the Letters Patent, be subject to an appeal to that Court. If the order
made by a single Judge is a judgment and if the appropriate Legislature
has, expressely or by necessary implication, not taken away the right of
appeal, the conclusion is inevitable that an appeal shall lie from the
judgment of a single Judge under cl. 10 of the Letters Patent to the High
Court. It follows that, if the Act had not taken away the Letters Patent
appeal, an appeal shall certainly lie from the judgment of the single Judge
of the High Court.”
[underlining is ours]

24. From the aforesaid authority, two aspects are absolutely clear.
First, where an appeal is not excluded against the judgment of the High
Court of a Single Judge, an appeal would lie to the Division Bench and
second, if the appropriate Legislature has expressly or by necessary
implication not taken away a right of appeal, the appeal shall lie from the
Single Judge under Clause 10 of the Letters Patent to the High Court.

25. In this context, reference to the Constitution Bench judgment in
Jamshed N. Guzdar v. State of Maharashtra and others[5] would be apposite.
In the said case, the controversy arose pertaining to the constitutional
validity of the Bombay City Civil Court and Bombay Court of Small Causes
(Enhancement of Pecuniary Jurisdiction and Amendment) Act, 1986
(Maharashtra Act 15 of 1987) (for short “the 1987 Act”), Maharashtra High
Court (Hearing of Writ Petitions by Division Bench and Abolition of Letters
Patent Appeals) Act, 1986 (Maharashtra Act 17 of 1986) (for short “the 1986
Act”) and Madhya Pradesh Uchcha Nyayalaya (Letters Patent Appeals Samapti)
Adhiniyam, 1981 (for short ‘the Adhiniyam’) by which State Legislatures had
abolished the intra-court appeals provided under the Letters Patent. It is
apt to note here that the Full Bench of the Madhya Pradesh High Court, by
majority opinion, had struck down the legislation abolishing Letters Patent
Appeal as invalid.

26. The principal question that emerged for consideration related to the
legislative competence of the State Legislatures in passing the above named
enactments. The Constitution Bench held thus:-

“73. … Entry 46 of List III relates to jurisdiction and power of all
courts except the Supreme Court i.e. including the City Civil Court and
High Court with respect to any matter in List III including the Civil
Procedure Code in Entry 13. The contention that merely constituting and
organising High Courts without conferring jurisdiction to deal with the
matters on them does not serve any purpose, cannot be accepted. The
Constitution itself has conferred jurisdiction on High Courts, for
instance, under Articles 226 and 227. This apart, under various enactments,
both Central and State, certain jurisdiction is conferred on High Courts.
The High Courts have power and jurisdiction to deal with such matters as
are conferred by the Constitution and other statutes. This power of
“administration of justice” has been included in the Concurrent List after
3-1-1977 possibly to enable both the Centre as well as the States to confer
jurisdiction on High Courts under various enactments passed by the Centre
or the State to meet the needs of the respective States in relation to
specific subjects. Thus, viewed from any angle, it is not possible to agree
that the 1987 Act and the 1986 Act are beyond the competence of the State
Legislature.

74. We are, therefore, of the view that there is no merit in the contention
that the State Legislature did not have competence to enact the two
legislations, the constitutionality of which has been challenged before
us.”

And again:-

“88. The argument that the 1986 Act or the Adhiniyam encroaches upon the
legislative power of Parliament, cannot be accepted, in the view we have
taken that it was competent for the State Legislatures to pass law relating
to general jurisdiction of the High Courts dealing with the topic
“administration of justice” under Entry 11-A of List III. Assuming that
incidentally the 1986 Act and the Adhiniyam touch upon the Letters Patent,
the 1986 Act and the Adhiniyam cannot be declared either as
unconstitutional or invalid applying doctrine of pith and substance having
due regard to the discussion already made above while dealing with the
legislative competence of the State in passing the 1987 Act.”

27. On the aforesaid analysis, the Court set aside the judgment of the Full
Bench of the High Court of Madhya Pradesh and dismissed the writ petitions
filed by others challenging the 1986 Act and the 1987 Act. Thus, it has
been clearly held that the State Legislature has competence to amend the
Letters Patent.

28. The purpose of referring to this judgment is that till a competent
legislature takes away the power of the Letters Patent, the same can be
exercised by the High Court. However, while exercising the power under the
Letters Patent, it is imperative to see what is the nature of jurisdiction
that has actually been provided in the Letters Patent. The exercise of
jurisdiction has to be within the ambit and scope of the authority
enshrined in the provision meant for intra-court appeal.

29. At this stage, we may refer to some of the pronouncements commended
to us by the learned senior counsel for the appellant. In Commissioner of
Income-Tax, Bombay & another v. Ishwarlal Bhagwandas and others[6], the
High Court of Bombay under Article 226 of the Constitution had quashed the
orders passed by the Income Tax Officer and the Commissioner of Income Tax.
Against the orders passed by the High Court, the Commissioner of Income
Tax and the Income Tax Officer prayed for grant of certificate to the High
Court and after grant of such certificate, appealed to this Court. At the
commencement of hearing of the appeal, the learned counsel for the assessee
raised a preliminary objection that the appeal filed by the revenue was
incompetent because the High Court had no power under Article 133 of the
Constitution to certify a proposed appeal against an order in a proceeding
initiated by a petition for the issue of a writ under Article 226 of the
Constitution inasmuch as the proceeding before the High Court was not “a
civil proceeding” within the meaning of Article 133.

30. The Court referred to Article 133 of the Constitution and took note
of the submission that the jurisdiction exercised by the High Court as
regards the grant of certificate pertains to judgment, decree or final
order of a High Court in a civil proceeding and that “civil proceeding”
only means a proceeding in the nature of or triable as a civil suit and a
petition for the issue of a high prerogative writ by the High Court was not
such a proceeding. Additionally, it was urged that even if the proceeding
for issue of a writ under Article 226 of the Constitution may, in certain
cases, be treated as a civil proceeding, it cannot be so treated when the
party aggrieved seeks relief against the levy of tax or revenue claimed to
be due to the State. The Court, delving into the nature of civil
proceedings, noted that:-

“The expression "civil proceeding" is not defined in the Constitution, nor
in the General Clauses Act. The expression in our judgment covers all
proceedings in which a party asserts the existence of a civil right
conferred by the civil law or by statute, and claims relief for breach
thereof.”

31. After so stating, the Court elucidated the nature of criminal
proceeding and, in that regard, ruled thus:-

“A criminal proceeding on the other hand is ordinarily one in which if
carried to its conclusion it may result in the imposition of sentences such
as death, imprisonment, fine or forfeiture of property. It also includes
proceedings in which in the larger interest of the State, orders to prevent
apprehended breach of the peace, orders to bind down persons who are a
danger to the maintenance of peace and order, or orders aimed at preventing
vagrancy are contemplated to be passed.”

32. Explicating the concept further, the Court opined that:-

“The character of the proceeding, in our judgment, depends not upon the
nature of the tribunal which is invested with authority to grant relief but
upon the nature of the right violated and the appropriate relief which may
be claimed.”

33. It further held that a civil proceeding is, therefore, one in which a
person seeks to enforce by appropriate relief the alleged infringement of
his civil rights against another person or the State, and which, if the
claim is proved, would result in the declaration, express or implied, of
the right claimed and relief such as payment of debt, damages,
compensation, delivery of specific property, enforcement of personal
rights, determination of status, etc.

34. The aforesaid authority makes a clear distinction between a civil
proceeding and a criminal proceeding. As far as criminal proceeding is
concerned, it clearly stipulates that a criminal proceeding is ordinarily
one which, if carried to its conclusion, may result in imposition of (i)
sentence, and (ii) it can take within its ambit the larger interest of the
State, orders to prevent apprehended breach of peace and orders to bind
down persons who are a danger to the maintenance of peace and order. The
Court has ruled that the character of the proceeding does not depend upon
the nature of the tribunal which is invested with the authority to grant
relief but upon the nature of the right violated and the appropriate relief
which may be claimed.

35. In this regard, reference to Umaji Keshao Meshram & others v.
Radhikabai & another[7] would be fruitful. In the said case, the
controversy arose whether an appeal lies under Clause 15 of the Letters
Patent of the Bombay High Court to a Division Bench of two judges of that
High Court from the judgment of a Single Judge of that High Court in a
petition filed under Article 226 or 227 of the Constitution of India. The
Court referred to the Letters Patent of Calcutta, Bombay and Madras High
Courts which are pari materia in the same terms with minor variations that
have occurred due to amendments made subsequently. The Court referred to
the provisions of the Government of India Act, the Indian Independence Act,
1947 and the debates of the Constituent Assembly and observed that the
historical evidence shows that our Constitution did not make a break with
the past. It referred to some earlier authorities and, eventually, came to
hold that:-

“92. 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 (for example, Section 100-A
of the Code of Civil Procedure, 1908) and provided the conditions laid down
by clause 15 itself are fulfilled. The conditions prescribed by clause 15
in this behalf are: (1) that it must be a judgment pursuant to Section 108
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.”

And again:-

“100. 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 Articles 226 and 227 is the same inasmuch 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 superintendence”. We are afraid,
the Full Bench has misunderstood the 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, orders and writs to any person or authority
including any Government. Under Article 227 every High Court has power 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 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 superintendence conferred upon every High Court by
Article 227 is a supervisory jurisdiction intended to ensure that
subordinate courts and tribunals act within the limits of their authority
and according to law (see State of Gujarat v. Vakhatsinghji Vajesinghji
Vaghela[8] and Ahmedabad Mfg. & Calico Ptg. Co. Ltd. v. Ram Tahel
Ramnand[9]). The orders, directions and writs under Article 226 are not
intended 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 226. Though at the first blush it may seem that a
writ of certiorari or a writ of prohibition partakes of the nature of
superintendence inasmuch 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 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 different
processes does not mean that these two processes are the same.”

36. In the ultimate analysis, the two-Judge Bench held that the petition
filed by the appellant 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 and under Clause 15 of the
Letters Patent of that High Court, an intra-court appeal
against the decision of the learned Single Judge was expressly barred.

37. In this context, a reference to a two-Judge Bench decision in Ashok
K. Jha and others v. Garden Silk Mills Limited and another[10] would be
profitable. The question that arose for consideration was whether an
appeal under Clause 15 of the Letters Patent of the High Court of Bombay
was maintainable from the judgment and order passed by the learned Single
Judge in a special civil application. The controversy had arisen from the
dispute raised before the Labour Court. The matter travelled through the
Industrial Court in appeal which was challenged before the High Court under
Articles 226 and 227 of the Constitution of India. While dealing with the
issue of maintainability, the Court referred to Umaji Keshao Meshram
(supra), Kishorilal v. Sales Officer, District Land Development Bank[11],
State of Madhya Pradesh and others v. Visan Kumar Shiv Charan Lal[12] and
Sushilabai Laxminarayan Mudliyar and others v. Nihalchand Waghajibhai Shaha
and others [13] and ultimately held that:-

“35. In Visan Kumar Shiv Charan Lal (supra) this Court further held that
the determining factor is the real nature of principal order passed by the
Single Judge which is appealed against and neither mentioning in the cause-
title of the application of both the articles nor granting of ancillary
order thereupon by the Single Judge would be relevant and in each case the
Division Bench must consider the substance of the judgment under appeal to
ascertain whether the Single Judge has mainly or principally exercised his
jurisdiction under Article 226 or Article 227 of the Constitution. In
Ramesh Chandra Sankla[14] this Court held:

“47. In our judgment, the learned counsel for the appellant is right in
submitting that nomenclature of the proceeding or reference to a particular
article of the Constitution is not final or conclusive. He is also right in
submitting that an observation by a Single Judge as to how he had dealt
with the matter is also not decisive. If it were so, a petition strictly
falling under Article 226 simpliciter can be disposed of by a Single Judge
observing that he is exercising power of superintendence under Article 227
of the Constitution. Can such statement by a Single Judge take away from
the party aggrieved a right of appeal against the judgment if otherwise the
petition is under Article 226 of the Constitution and subject to an intra-
court/letters patent appeal? The reply unquestionably is in the negative….”

38. The Court in the said case accepted the decision rendered in Ramesh
Chandra Sankla (supra) and opined that a statement by a learned Single
Judge that he has exercised power under Article 227 cannot take away the
right of appeal against such judgment if the power is otherwise found to
have been exercised under Article 226. The vital factor for determination
of the maintainability of the intra-court appeal is the nature of
jurisdiction invoked by the party and the true nature of the order passed
by the learned Single Judge.

39. In Radhey Shyam and another v. Chhabi Nath and others[15], the issue
arose with regard to the correctness of the decision in Surya Dev Rai v.
Ram Chander Rai[16] before the three-Judge Bench. The three-Judge Bench
referred to Naresh Shridhar Mirajkar v. State of Maharashtra[17] wherein
this Court came to the conclusion that “Certiorari does not lie to quash
the judgments of inferior courts of civil jurisdiction.” It adverted to the
authority in Surya Dev Rai (supra) copiously and weighed it in the backdrop
of other authorities and compared it with the English law principles and
ruled that:-
“26. The Bench in Surya Dev Rai (supra) also observed in para 25 of its
judgment that distinction between Articles 226 and 227 stood almost
obliterated. In para 24 of the said judgment distinction in the two
articles has been noted. In view thereof, observation that scope of
Articles 226 and 227 was obliterated was not correct as rightly
observed[18] by the referring Bench in para 32 quoted above. We make it
clear that though despite the curtailment of revisional jurisdiction under
Section 115 CPC by Act 46 of 1999, jurisdiction of the High Court under
Article 227 remains unaffected, it has been wrongly assumed in certain
quarters that the said jurisdiction has been expanded. Scope of Article 227
has been explained in several decisions including Waryam Singh v.
Amarnath[19], Ouseph Mathai v. M. Abdul Khadir[20], Shalini Shyam Shetty v.
Rajendra Shankar Patil[21] and Sameer Suresh Gupta v. Rahul Kumar
Agarwal[22].”

40. The ultimate conclusion arrived at in the said case is that:-
“27. … we are of the view that judicial orders of civil courts are not
amenable to a writ of certiorari under Article 226. We are also in
agreement with the view19 of the referring Bench that a writ of mandamus
does not lie against a private person not discharging any public duty.
Scope of Article 227 is different from Article 226.”

41. The Court clarified the position by adding that:-
“28. We may also deal with the submission made on behalf of the respondent
that the view in Surya Dev Rai (supra) stands approved by larger Benches in
Shail[23], Mahendra Saree Emporium (2)[24] and Salem Advocate Bar Assn.
(2)[25] and on that ground correctness of the said view cannot be gone into
by this Bench. In Shail (supra), though reference has been made to Surya
Dev Rai (supra), the same is only for the purpose of scope of power under
Article 227 as is clear from para 3 of the said judgment. There is no
discussion on the issue of maintainability of a petition under Article 226.
In Mahendra Saree Emporium (2) (supra), reference to Surya Dev Rai (supra)
is made in para 9 of the judgment only for the proposition that no
subordinate legislation can whittle down the jurisdiction conferred by the
Constitution. Similarly, in Salem Advocate Bar Assn. (2) (supra) in para
40, reference to Surya Dev Rai (supra) is for the same purpose. We are,
thus, unable to accept the submission of the learned counsel for the
respondent.”

42. In the ultimate eventuate, the three-Judge Bench answered the
reference as follows:-
“29.1. Judicial orders of the civil court are not amenable to writ
jurisdiction under Article 226 of the Constitution.
29.2. Jurisdiction under Article 227 is distinct from jurisdiction under
Article 226.
29.3. Contrary view in Surya Dev Rai (supra) is overruled.”

43. Recently, in Jogendrasinhji Vijaysinghji v. State of Gujarat and
others[26] the Court was dealing with a batch of appeals that arose from
the High Court of Gujarat as regards the maintainability of Letters Patent
Appeal. The Court referred to the nine-Judge Bench decision in Naresh
Shridhar Mirajkar (supra) and the three-Judge Bench decision in Radhey
Shyam (supra) and ruled that a judicial order passed by the civil court can
only be assailed and scrutinised under Article 227 of the Constitution and,
hence, no intra-court appeal is maintainable.
44. As the controversy related to further two aspects, namely, whether
the nomenclature of article is sufficient enough and further, whether a
tribunal is a necessary party to the litigation, the two-Judge Bench
proceeded to answer the same. In that context, the Court referred to the
authorities in Lokmat Newspapers (P) Ltd. v. Shankarprasad[27], Kishorilal
(supra), Ashok K. Jha (supra) and Ramesh Chandra Sankla (supra) and opined
that maintainability of a letters patent appeal would depend upon the
pleadings in the writ petition, the nature and character of the order
passed by the learned Single Judge, the type of directions issued regard
being had to the jurisdictional perspectives in the constitutional context.
It further observed that barring the civil court, from which order as held
by the three-Judge Bench in Radhey Shyam (supra) that a writ petition can
lie only under Article 227 of the Constitution, orders from tribunals
cannot always be regarded for all purposes to be under Article 227 of the
Constitution. Whether the learned Single Judge has exercised the
jurisdiction under Article 226 or under Article 227 or both, would depend
upon various aspects. There can be orders passed by the learned Single
Judge which can be construed as an order under both the articles in a
composite manner, for they can co-exist, coincide and imbricate. It was
reiterated that it would depend upon the nature, contour and character of
the order and it will be the obligation of the Division Bench hearing the
letters patent appeal to discern and decide whether the order has been
passed by the learned Single Judge in exercise of jurisdiction under
Article 226 or 227 of the Constitution or both. The two-Judge Bench further
clarified that the Division Bench would also be required to scrutinise
whether the facts of the case justify the assertions made in the petition
to invoke the jurisdiction under both the articles and the relief prayed on
that foundation. The delineation with regard to necessary party not being
relevant in the present case, the said aspect need not be adverted to.
45. We have referred to these decisions only to highlight that it is
beyond any shadow of doubt that the order of civil court can only be
challenged under Article 227 of the Constitution and from such challenge,
no intra-court appeal would lie and in other cases, it will depend upon the
other factors as have been enumerated therein.

46. At this stage, it is extremely necessary to cull out the conclusions
which are deducible from the aforesaid pronouncements. They are:-

(a) An appeal shall lie from the judgment of a Single Judge to a Division
Bench of the High Court if it is so permitted within the ambit and sweep
of the Letters Patent.

(b) The power conferred on the High Court by the Letters Patent can be
abolished or curtailed by the competent legislature by bringing appropriate
legislation.

(c) A writ petition which assails the order of a civil court in the High
Court has to be understood, in all circumstances, to be a challenge under
Article 227 of the Constitution and determination by the High Court under
the said Article and, hence, no intra-court appeal is entertainable.

(d) The tenability of intra-court appeal will depend upon the Bench
adjudicating the lis as to how it understands and appreciates the order
passed by the learned Single Judge. There cannot be a straitjacket formula
for the same.
47. In the case at hand, learned counsel for the respondent State would
submit that when a writ of certiorari is issued, it is a prerogative writ
and, therefore, an appeal would lie to the Division Bench. He has
emphatically commended us to the pronouncement in Hari Vishnu Kamath v.
Syed Ahmad Ishaque and others[28]. In the said case, the Court has
referred to the earlier decision in T.C. Basappa v. T. Nagappa[29] and held
that:-
“… ‘Certiorari’ will be issued for correcting errors of jurisdiction, as
when an inferior Court or Tribunal acts without jurisdiction or in excess
of it, or fails to exercise it. (2) ‘Certiorari’ will also be issued when
the Court or Tribunal acts illegally in the exercise of its undoubted
jurisdiction, as when it decides without giving an opportunity to the
parties to be heard, or violates the principles of natural justice. (3) The
Court issuing a writ of certiorari acts in exercise of a supervisory and
not appellate jurisdiction. One consequence of this is that the Court will
not review findings of fact reached by the inferior Court or Tribunal, even
if they be erroneous. This is on the principle that a Court which has
jurisdiction over a subject-matter has jurisdiction to decide wrong as well
as right, and when the Legislature does not choose to confer a right of
appeal against that decision, it would be defeating its purpose and policy,
if a superior Court were to re-hear the case on the evidence, and
substitute its own findings in certiorari. These propositions -are well
settled and are not in dispute.”

48. It is propounded by Mr. Visen that a writ of certiorari can be issued
on many a ground and when the learned Single Judge has issued a writ of the
present nature in quashing the order of the Upa-Lokayukta, it has to be
treated as an order under Article 226 of the Constitution of India. That
apart, he urged that the issue whether it would be under Article 226 or 227
is to be determined by the Division Bench of the High Court.

49. The aforesaid argument suffers from a fundamental fallacy. It is
because the submission is founded on the plinth of whether the writ
jurisdiction has been exercised under Article 226 or 227 of the
Constitution. It does not take note of the nature of jurisdiction and the
relief sought. If the proceeding, nature and relief sought pertain to
anything connected with criminal jurisdiction, intra-court appeal would not
lie as the same is not provided in Clause 10 of the Letters Patent.
Needless to emphasise, if an appeal in certain jurisdictions is not
provided for, it cannot be conceived of. Therefore, the reliance placed
upon the larger Bench authority in Hari Vishnu Kamath (supra) does not
render any assistance to the argument advanced by the learned counsel for
the respondent-State.

50. The crux of the present matter is whether the learned Single Judge
has exercised “civil jurisdiction” or “criminal jurisdiction”. In that
regard, Mr. Visen has strenuously contended that the Lokayukta is a quasi-
judicial authority and the proceeding being quasi-judicial in nature, it
cannot be regarded as one relatable to criminal jurisdiction, but it may be
treated as a different kind or category of civil proceeding. His argument
is supported by the Full Bench decision of the High Court of Andhra Pradesh
in Gangaram Kandaram v. Sunder Chikha Amin and others[30]. In the said
case, a writ petition was filed for issue of a writ of mandamus to declare
the action of the respondents in registering crimes under Sections 420 and
406 of the Indian Penal Code against the writ petitioner in FIR Nos. 14/97,
137/97 and 77/97 as illegal and to quash the same. The learned Single Judge
had allowed the writ petition by order dated 06.08.1997 and quashed the
FIRs. The order passed by the learned Single Judge was assailed by the 7th
respondent in intra-court appeal. The Full Bench posed the following
question:-
“Whether appeal under Clause 15 of the Letters Patent of the Court lies
against the judgment in such a case. In other words, whether a proceeding
for quashing of investigation in a criminal case under Article 226 of the
Constitution of India is a civil proceeding and the judgment as above is a
judgment in a civil proceeding in exercise of the original jurisdiction of
the Court for the purposes of appeal under Clause 15 of the Letters
Patent."

51. Dwelling upon the said issue, the Court referred to the authority in
State of Haryana and others v. Bhajanlal and others[31] wherein the Court
had categorised certain aspects of the case as illustrations wherein power
under Article 226 or the inherent power under Section 482 CrPC can be
exercised. Be it noted, the Court gave a note of caution to the effect that
the power of quashing a criminal proceeding should be exercised very
sparingly and with circumspection and that too in the rarest of rare cases
and further, the Court will not be justified in embarking upon an enquiry
as to the reliability or genuineness or otherwise of the allegations made
in the FIR or the complaint and that the extraordinary or inherent powers
do not confer an arbitrary jurisdiction on the Court to act according to
its whim or caprice. The Full Bench, after referring to the same, adverted
to the authorities in Rashmi Kumar v. Mahesh Kumar Bhada[32] and Rajesh
Bajaj v. State NCT of Delhi[33], deliberated upon the maintainability of
the appeal and, in that regard, stated thus:-
“15. As per Clause 15 of Letters Patent, no appeal shall lie against the
judgment of one Judge of the said High Court or one Judge of any Division
Bench passed in exercise of appellate jurisdiction in respect of decree or
order made in exercise of appellate jurisdiction by a Court subject to the
superintendence of the said High Court and not being an order made in
exercise of the revisional jurisdiction and not being a sentence or order
passed or made in exercise of power of superintendence of Section 107 of
Government of India Act or in exercise of criminal jurisdiction. An appeal
shall lie to the Division Bench under Clause 15 of Letters Patent from the
judgment of one Judge of the High Court or one Judge of any Division Bench.
The appeal from judgments of single Judges of the High Court shall lie to
the Division Bench except the judgments prohibited by Clause 15. The
learned single Judge while exercising the extraordinary jurisdiction under
Article 226 quashed the criminal proceedings. In our view, the exercise
powers under Article 226 of the Constitution by issuing a writ in quashing
the FIR is not in exercise of criminal jurisdiction. No doubt against the
order under Section 482 of Cr.P.C. or against the proceedings under
Contempt of Court, no appeal will lie under Clause 15 of Letters Patent,
but against the judgments quashing the FIR is in exercise of the original
jurisdiction of the Court under Article 226, writ appeal lies under Clause
15 of Letters Patent. Issuing a writ of mandamus or certiorari by the High
Court under Article 226 pertaining to a criminal complaint or proceeding
cannot be said to be an order passed in exercise of the criminal
jurisdiction. Therefore, we hold that an appeal lies under Clause 15 of
Letters Patent.”
[Emphasis added]

52. According to Mr. Visen, learned counsel for the respondent State, the
view expressed by the Andhra Pradesh High Court is absolutely defensible in
law and, therefore, the appeal being maintainable, the order impugned in
the present appeal does not warrant any interference.
53. Dr. Dhawan, learned senior counsel, has commended us to two
authorities – one by the Division Bench of Gujarat High Court and the other
by the Full Bench of High Court of Delhi. In Sanjeev Rajendrabhai Bhatt v.
State of Gujarat & others[34], two appeals being Special Criminal
Application Nos. 6 and 24 of 1998 arose out of a common order passed by the
learned Single Judge. The learned Single Judge, by the impugned order,
upheld the preliminary objection raised on behalf of the State of Rajasthan
that the High Court of Gujarat had no territorial jurisdiction in the
matter as the proceedings were initially conducted in the Court of Chief
Judicial Magistrate, Pali situated in Rajasthan. The maintainability of the
objections on the ground of want of territorial jurisdiction was the
subject matter of appeal before the Division Bench. The Court posed two
questions and the primary one pertained to the maintainability of Letters
Patent Appeal. For the aforesaid purpose, the appellate Bench thought it
appropriate to pose the following two questions:-
“First, whether an order passed by the learned single Judge can be said to
have been made in the exercise of extraordinary powers under Article 226 of
the Constitution or in the exercise of supervisory jurisdiction under
Article 227 of the Constitution. Secondly, whether the order passed by the
learned single Judge can be said to have been passed in the exercise of
criminal jurisdiction within the meaning of Clause 15 of the Letters
Patent.”

54. The Division Bench referred to Umaji Keshao Meshram (supra),
adverted to the decisions in Supreme Court Bar Association v. Union of
India and another[35] and A.R. Antulay v. R.S. Nayak and another[36] (as
Article 21 was also raised as an issue) and came to hold that it would not
be advisable to express final opinion on the question whether the petitions
filed by the petitioners can be said to be under Article 226 or Article 227
of the Constitution. Proceeding on the other score, the Court analysed the
various provisions of the CrPC, namely, Sections 109, 200, 202, sub-section
(3) of Section 156 and various clauses of the Letters Patent, distinguished
the decision in State of Gujarat v. Jayantilal Maganlal Patel[37] and
distinguished the same by holding that the observations of the Division
Bench cannot be construed to mean that when a petition is filed
under Article 226 of the Constitution, L.P.A. would lie irrespective of the
fact that such question might have arisen in exercise of criminal
jurisdiction.
55. It is worthy to note that a series of decisions were cited on behalf
of the appellants therein including a Full Bench judgment of the Gujarat
High Court in Patel Kashiram Lavjibhai v. Narottamdas Bechardas &
others[38] wherein the Full Bench considered Articles 226 and 227 of the
Constitution in the light of various decisions of this Court and deduced
certain principles. The Division Bench distinguished the said decision on
the ground that the Full Bench did not lay down as a proposition of law
that LPAs would be maintainable even if an order was passed by the learned
Single Judge in exercise of criminal jurisdiction, for the case before the
Full Bench related to right in land and the question was whether the power
exercised by the learned Single Judge was under Article 226 or under
Article 227 of the Constitution. Eventually, the Court referred to
Ishwarlal Bhagwandas (supra) and opined thus:-

“80. In our considered opinion, in the instant case, the proceedings can be
said to be criminal proceedings inasmuch as, carried to its conclusion,
they may result into imprisonment, fine etc. as observed by the Supreme
Court in Narayana Row.

81. From the totality of facts and circumstances, we have no hesitation in
holding mat the learned single Judge has passed an order in exercise of
criminal jurisdiction. At the cost of repetition, we reiterate what we have
already stated earlier that the proceedings were of a criminal nature.
Whether a criminal Court takes cognizance of an offence or sends a
complaint for investigation under Sub-section (3) of Section 156 of the
Code of Criminal Procedure, 1973 does not make difference so far as the
nature of proceedings is concerned. Even if cognizance is not taken, that
fact would not take out the case from the purview of criminal jurisdiction.

82. In our judgment, a proceeding under Article 226 of the Constitution
arising from an order passed or made by a Court in exercise or purported
exercise of power under the Code of Criminal Procedure is still a 'criminal
proceeding' within the meaning of Clause 15 of the Letters Patent. A
proceeding seeking to avoid the consequences of a criminal proceeding
initiated under the Code of Criminal Procedure will continue to remain
'criminal proceeding' covered by the bracketed portion of Clause 15 of the
Letters Patent.”

56. Being of this view, the Division Bench ruled that as Clause 15 of the
Letters Patent expressly bars an appeal against the order passed by a
Single Judge of the High Court in exercise of criminal jurisdiction, LPAs
are not maintainable and, accordingly, dismissed the same.

57. From the aforesaid analysis, it is demonstrable that the Gujarat High
Court has opined that relying on the authority of this Court in Ishwarlal
Bhagwandas (supra), the issue whether the proceedings are civil or not
would depend upon the nature of the right violated and the appropriate
relief which might be claimed and not upon the nature of the tribunal which
has been invested to grant relief. The Division Bench further opined that
even if cognizance is not taken in respect of a criminal case, it would not
take out the case from the purview of criminal jurisdiction. Thus, it has
been held by the Division Bench that when there is a proceeding under
Article 226 of the Constitution arising from an order made by a Court in
exercise of power under the Code of Criminal Procedure, it would be a
criminal proceeding within the meaning of Letters Patent.

58. The Full Bench of the High Court of Delhi in C.S. Agarwal v. State &
others[39] was dealing with a situation wherein a writ petition was filed
before the High Court under Article 226 of the Constitution of India read
with Section 482 of Cr.P.C. seeking for appropriate writ for quashing of
the FIR. As the writ petition was dismissed by the learned Single Judge,
an intra-court appeal was preferred. A preliminary objection was taken by
the respondents as regards the maintainability of the LPA contending that
the judgment of the learned Single Judge was passed in exercise of criminal
jurisdiction and the Letters Patent Appeal against such an order is barred
by Clause 10 and Clause 18 of the Letters Patent constituting the High
Court of Judicature at Lahore, which is applicable to the Judicature of
High Court of Delhi. The Full Bench analysed Clause 10 of the Letters
Patent and took note of what has been prohibited for entertaining any intra-
court appeal. The Full Bench, analyzing various decisions, opined thus:-

“… proceedings under Article 226 of the Constitution would be treated as
original civil proceedings only when it concerns civil rights. A fortiori,
if it concerns a criminal matter, then such proceedings would be original
criminal proceedings. Letters Patent would lie when the Single Judge
decides the writ petition in proceedings concerning civil rights. On the
other hand, if these proceedings are concerned with rights in criminal law
domain, then it can be said that the Single Judge was exercising his
‘criminal jurisdiction’ while dealing with such a petition filed under
Article 226 of the Constitution.”

59. After so stating, the Full Bench referred to the Constitution Bench
decision in Ishwarlal Bhagwandas (supra) and distinguished the Full Bench
decision of the Andhra High Court in Gangaram Kandaram (supra) and noted
the decision of the Division Bench of Gujarat High Court in Sanjeev
Rajendrabhai Bhat (supra) and came to hold as follows:-

“32. The test, thus, is whether criminal proceedings are pending or not and
the petition under Article 226 of the Constitution is preferred concerning
those criminal proceedings which could result in conviction and order of
sentence.

33. When viewed from this angle, it is clear that if the FIR is not
quashed, it may lead to filing of Challan by the investigating agency,
framing of charge and can result in conviction of order of sentence. Writ
of this nature filed under Article 226 of the Constitution. Seeking
quashing of such an FIR would therefore be “criminal proceedings” and while
dealing with such proceedings, the High Court exercises its “criminal
jurisdiction”.”

60. Being of this view, the Full Bench opined that the Letters Patent
Appeal was not maintainable. In this regard, learned counsel for the
appellant has also drawn our attention to the Division Bench judgment of
the Delhi High Court in Vipul Gupta v. State & Ors[40] wherein the Division
Bench, placing reliance on the Full Bench decision, has expressed the view
that though the writ petitions were not filed for quashing of FIR as in the
case of the Full Bench decision, yet the learned Single Judge was
exercising criminal jurisdiction, for the Lieutenant Governor of Delhi had
agreed with the proposal not to press the application for withdrawal of the
criminal case under Section 321 of the Cr.P.C. and allowed the trial court
to proceed on merits. In this factual backdrop, the Division Bench opined:-

“…Even though the challenge in the writ petitions was to a decision of
Hon’ble the Lieutenant Governor but the said decision was relating to the
prosecution already underway of the appellants and the direct effect of the
dismissal of the writ petitions is of continuation of the prosecution which
may result in imposition of sentences such as death, imprisonment, fine or
forfeiture of property, of the appellants. We are thus of the view that
this Court while dealing with the writ petitions was exercising its
criminal jurisdiction. It cannot be also lost sight of that the writ
petitions were intended to avoid the consequences of criminal proceedings
imitated under the Code of Criminal Procedure and concerned with rights in
criminal law domain. We have thus no doubt that the learned single Judge,
in dealing with the writ petitions was exercising “criminal jurisdiction”
and these Letters Patent Appeals are not maintainable.”

61. As we find from the decisions of the aforesaid three High Courts, it
is evident that there is no disagreement or conflict on the principle that
if an appeal is barred under Clause 10 or Clause 15 of the Letters Patent,
as the case may be, no appeal will lie. The High Court of Andhra Pradesh,
however, has held that when the power is exercised under Article 226 of the
Constitution for quashing of a criminal proceeding, there is no exercise of
criminal jurisdiction. It has distinguished the proceeding for quashing of
FIR under Section 482 CrPC and, in that context, has opined that from such
an order, no appeal would lie. On the contrary, the High Courts of Gujarat
and Delhi, on the basis of the law laid down by this Court in Ishwarlal
Bhagwandas (supra), have laid emphasis on the seed of initiation of
criminal proceeding, the consequence of a criminal proceeding and also the
nature of relief sought before the Single Judge under Article 226 of the
Constitution. The conception of ‘criminal jurisdiction’ as used in Clause
10 of the Letters Patent is not to be construed in the narrow sense. It
encompasses in its gamut the inception and the consequence. It is the field
in respect of which the jurisdiction is exercised, is relevant. The
contention that solely because a writ petition is filed to quash an
investigation, it would have room for intra-court appeal and if a petition
is filed under inherent jurisdiction under Section 482 CrPC, there would be
no space for an intra-court appeal, would create an anomalous, unacceptable
and inconceivable situation. The provision contained in the Letters Patent
does not allow or permit such an interpretation. When we are required to
consider a bar or non-permissibility, we have to appreciate the same in
true letter and spirit. It confers jurisdiction as regards the subject of
controversy or nature of proceeding and that subject is exercise of
jurisdiction in criminal matters. It has nothing to do whether the order
has been passed in exercise of extraordinary jurisdiction under Article 226
of the Constitution or inherent jurisdiction under Section 482 CrPC. In
this regard, an example can be cited. In the State of Uttar Pradesh,
Section 438 CrPC has been deleted by the State amendment and the said
deletion has been treated to be constitutionally valid by this Court in
Kartar Singh v. State of Punjab[41]. However, that has not curtailed the
extraordinary power of the High Court to entertain a plea of anticipatory
bail as has been held in Lal Kamlendra Pratap Singh v. State of Uttar
Pradesh and others[42] and Hema Mishra v. State of Uttar Pradesh and
others[43]. But that does not mean that an order passed by the Single
Judge in exercise of Article 226 of the Constitution relating to criminal
jurisdiction, can be made the subject matter of intra-court appeal. It is
not provided for and it would be legally inappropriate to think so.

62. In view of the aforesaid premised reasons, we hold that the High
Courts of Gujarat and Delhi have correctly laid down the law and the view
expressed by the Full Bench of the High Court of Andhra Pradesh is
incorrect.

63. We will be failing in our duty if we do not take note of an authority
cited by Mr. Visen. He has commended us to the Division Bench Judgment of
the High Court of Punjab and Haryana in Adishwar Jain v. Union of India and
another[44]. In the said case, the question arose with regard to the
maintainability of Letters Patent Appeal, for the Single Judge had
dismissed the writ of Habeas Corpus. The Division Bench, dealing with the
maintainability of LPA, referred to Umaji Keshao Meshram (supra) and
extracted the following passage:-

“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.
The 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 decision of this Court has
firmly established that proceeding under Article 226 is an original
proceeding and when it concerns civil rights, it is an original civil
proceeding.”

64. On the aforesaid basis, the Division Bench ruled that in a proceeding
under Article 226 consisting of civil rights, the proceedings are civil in
nature falling within the ambit of Clause 10 of the Letters Patent. In the
said case, the detention was under the COFEPOSA Act. The Court observed
that the said detention is purely preventive without any trial in a
criminal court and the challenge to such detention is for the enforcement
of a fundamental civil right and, therefore, a writ under Article 226 for
issue of Habeas Corpus in such like matters cannot be considered as a
proceeding under criminal jurisdiction even though the writ petition is
identified as a criminal writ petition under the High Court Rules and
others. The said decision has to be carefully appreciated. The
nomenclature of a writ petition is not the governing factor. What is
relevant is what is eventually being sought to be enforced. The Division
Bench observed that as there is a preventive detention, there is a
violation of fundamental civil right. The said decision, as is noticeable,
was rendered in a different context. We are only inclined to say that the
said authority does not assist the proposition expounded by the learned
counsel for the State.

65. In the case at hand, the writ petition was filed under Article 226 of
the Constitution for quashing of the recommendation of the Lokayukta. The
said recommendation would have led to launching of criminal prosecution,
and, as the factual matrix reveals, FIR was registered and criminal
investigation was initiated. The learned Single Judge analysed the report
and the ultimate recommendation of the statutory authority and thought it
seemly to quash the same and after quashing the same, as he found that FIR
had been registered, he annulled it treating the same as a natural
consequence. Thus, the effort of the writ petitioner was to avoid a
criminal investigation and the final order of the writ court is quashment
of the registration of FIR and the subsequent investigation. In such a
situation, to hold that the learned Single Judge, in exercise of
jurisdiction under Article 226 of the Constitution, has passed an order in
a civil proceeding as the order that was challenged was that of the quasi-
judicial authority, that is, the Lokayukta, would be conceptually
fallacious. It is because what matters is the nature of the proceeding,
and that is the litmus test.

66. In view of the aforesaid prismatic reasoning, the irresistible
conclusion is that the Letters Patent Appeal was not maintainable before
the Division Bench and, consequently, the order passed therein is wholly
unsustainable and, accordingly, it is set aside. However, as the State had
been diligently agitating its grievance in a legal forum which it thought
had jurisdiction, we grant liberty to the State to assail the order of the
learned Single Judge in accordance with law.

67. Consequently, the appeal is allowed and the impugned order is set
aside. However, liberty is granted to the State to challenge the order of
the learned Single Judge. There shall be no order as to costs.

..........................................J.
(Dipak Misra)

..........................................J.
(A.M. Khanwilkar)

..........................................J.
(Mohan M. Shantanagoudar)

New Delhi;
March 21, 2017.
-----------------------
[1]

[2] (2014) 2 SCC 1
[3]
[4] (2013) 3 SCC 117
[5]
[6] AIR 1965 SC 1595
[7]
[8] (1965) 2 SCR 756
[9]
[10] (2005) 2 SCC 591
[11]
[12] (1966) 1 SCR 190
[13]
[14] 1986 (Supp.) SCC 401
[15]
[16] AIR 1968 SC 1481
[17]
[18] (1973) 1 SCR 185
[19]
[20] (2009) 10 SCC 584
[21]
[22] (2006) 7 SCC 496
[23]
[24] (2008) 15 SCC 233
[25]
[26] 1993 Supp (1) SCC 11
[27]
[28] (2008) 14 SCC 58
[29]
[30] (2015) 5 SCC 423
[31]
[32] (2003) 6 SCC 675
[33]
[34] AIR 1967 SC 1
[35]
[36] (2009) 5 SCC 616
[37]
[38] AIR 1954 SC 215
[39]
[40] (2002) 1 SCC 319
[41]
[42] (2010) 8 SCC 329
[43]
[44] (2013) 9 SCC 374
[45]
[46] (2004) 4 SCC 785
[47]
[48] (2005) 1 SCC 481
[49]
[50] (2005) 6 SCC 344
[51]
[52] (2015) 9 SCC 1
[53]
[54] (1999) 6 SCC 275
[55]
[56] AIR 1955 SC 233
[57]
[58] AIR 1954 SC 440
[59]
[60] 2000 (2) ALT 448 (F.B.)
[61]
[62] AIR 1992 SC 604
[63]
[64] 1997 (2) SCC 397, 1997 SCC (Crl.) 415
[65]
[66] 1999 (3) SCC 259, 1999 SCC (Crl.) 401
[67]
[68] (2000) 1 Gujarat Law Reports 206
[69]
[70] 1998 (4) SCC 409
[71]
[72] AIR 1988 SC 1531
[73]
[74] 1995 (2) GLH 260
[75]
[76] 1978 GLR 1047 (FB)
[77]
[78] 2011 (125) DRJ 241 (FB)
[79]
[80] 208 (2014) DLT 468 (DB)
[81]
[82] (1994) 3 SCC 569
[83]
[84] (2009) 4 SCC 437
[85]
[86] (2014) 4 SCC 453
[87]
[88] 2006 Cri.LJ 3193

whether for the purposes of computing the period of limitation under Section 468 CrPC the relevant date is the date of filing of the complaint or the date of institution of the prosecution or whether the relevant date is the date on which a Magistrate takes cognizance of the offence. Answering the issue, the Court held that for that purpose computing the period of limitation under Section 468 CrPC the relevant date is the date of filing of the complaint or the date of institution of prosecution and not the date on which the Magistrate takes cognizance.; it is well settled in law that no one should suffer any prejudice because of the act of the court - “actus curiae neminem gravabit”.-. Once the said principle is not applicable, the rest of the submissions pertaining to seats going waste or the State losing its investment or the suffering of the students or claim of parity with other students have no legs to stand upon. It is because to give indulgence to the appellants or the interfering with the impugned order would only give rise to chaos; and it is an accepted norm that law does not countenance any chaos and abhors anarchy.

Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 11974 OF 2016
(arising out of S.L.P. (Civil) No. 27906 of 2016)

Neeraj Kumar Sainy and Ors. …Appellant(s)

Versus

State of U.P. and Ors. …Respondent(s)

J U D G M E N T

Dipak Misra, J.

The appellants invoked the jurisdiction of the High Court of
Judicature at Allahabad, Lucknow Bench, Lucknow in Writ Petition No. 21038
of 2016 for issue a writ of mandamus commanding the opposite parties,
namely, State of Uttar Pradesh, King George’s Medical University,
Coordinator, U.P. Post Graduate Medical Entrance Examination, 2016
(UPPGMEE, 2016) and Medical Council of India (MCI) to complete the process
of counselling by holding the second, third and mop-up round of counselling
as prescribed in the Information Brochure issued for the UPPGMEE, 2016 and
to ensure that no seats in any of the courses advertised in the Information
Brochure are allowed to go vacant for the academic year 2016-2017.
2. The facts which are requisite to be stated are that the appellants
had appeared in the written test of UPPGMEE-2016 and after being declared
successful, they participated in the first round of counselling which was
held from 04.04.2016 to 08.04.2016. The candidates who got selected in the
said counselling joined their respective seats allotted to them. The case
of the appellants before the High Court was that as per the Information
Brochure, minimum three round of counsellings are to be held and in case
sufficient number of seats are left unallotted at the end of third round of
counselling, then a mop-up round of allotment is required to be organized
on the notified date after giving due publicity by the Director General of
Medical Education and Training, U.P. to ensure that there is no loss of PG
seats in the academic year 2016-2017. It was urged before the High Court
that terms and conditions for participating in the mop-up round of
counselling are that (i) candidates who are admitted/allotted but not
joined/resigned in any seat in Uttar Pradesh will not be eligible for
participation; (ii) any candidate who had taken admission in any PG course
in any medical college in India also will not be eligible for
participation; (iii) the candidate must present himself/herself with all
original documents, and (iv) no request for re-allotment of seats already
allotted in the first and second round will be entertained.
3. It was the stand of the appellants before the High Court that it is
obligatory on the part of the respondents to give effect to the postulates
contained in the Information Brochure and hence, the authorities were under
obligation to hold the second and third round of counselling as well as the
mop-up round of counselling, but they had failed to do so by their
erroneous understanding of the judgment and order dated 16.08.2016 in the
case of State of Uttar Pradesh and others v. Dinesh Singh Chauhan[1]. It
was further contended that there was infringement of valuable rights of
writ petitioners as they had been denied admission to the institution of
their choice in accordance with merit. It was canvassed with vigour that
such an unacceptable situation had occurred, for despite the seats being
lying vacant in several medical colleges no steps were being taken to fill
them up. Citing an example, it was put forth that for the academic session
2013-2014 the counselling was done in the month of August and the
admissions were given to the meritorious candidates and, therefore, it was
necessary to issue appropriate directions to fill up the unfilled seats.
4. The stand of the appellants before the High Court was resisted by the
respondent No. 2 therein – Director General of Medical Education and
Training, Uttar Pradesh, contending, inter alia, that seats had remained
vacant because of the directions of the Supreme Court in Mridul Dhar
(Minor) and another v. Union of India and others[2] wherein stress was
laid for adherence to the time schedule and the categorical command that
there should not be midstream admissions. It was further held that
carrying forward unfilled seats of one academic year to another academic
year was not permissible. Reliance was also placed on the authority in
Priya Gupta v. State of Chhattisgarh and others[3] wherein it was directed
that the concerned authority was bound to fill up the seats in accord with
the time schedule stricto sensu and any violation thereof is to be
seriously viewed.
5. It was also highlighted by the contesting respondent that after the
interim order passed by this Court on 12.05.2016 the merit list was drawn
and counselling was carried out by 30.05.2016 as it was the last date fixed
by the MCI for completion of admission process. It was highlighted that
certain seats are lying vacant on ground of non-joining of the candidates
and no further steps could be taken. Similar arguments were canvassed by
the State of Uttar Pradesh and the Medical Council of India.
6. The High Court adverted to the factual background which was to the
effect that a policy decision was taken by the State of Uttar Pradesh on
16.01.2014 whereby 30% of postgraduate seats had been reserved for those
candidates who had completed three years service in the rural areas and in
pursuance of the same, the Government Order dated 28.02.2014 was issued to
engage Provincial Medical Health Services Cadre members to go for higher
education. In the said order, it was also provided that those members of
Provincial Services who had served in far remote backward areas in
respective Community Health Centre/Primary Health Centre would get the
benefit. After the said policy decision, the Examining Body issued
advertisement and therein the eligibility for admission had been provided
for and as per the same only those incumbents were eligible to apply who
had served for a period of three years in remote areas.
7. The said order was challenged in Writ-C No. 1380 of 2015 titled Dr.
Surya Kant Ojha and others v. State of U.P. and others[4] before the High
Court along with connected matters. The High Court vide order dated
07.04.2016 quashed the Government Order dated 28.02.2014 with a direction
that admissions in postgraduate degree courses be made strictly on the
basis of merit from amongst the candidates who had obtained requisite
minimum marks in the examination in question so prescribed by the MCI.
8. As the factual matrix would uncurtain, the matter travelled to this
Court in Dinesh Singh Chauhan (supra) wherein this Court took note of the
authority in Sudhir N. and others v. State of Kerala and others[5],
referred to Regulation 9 of the Medical Council of India Postgraduate
Medical Education Regulations, 2000 which deals with the method of
selection of candidates for admission to postgraduate courses and also
noted the insertions made in Regulation 9(1)(b) and Regulation 9(2)(d).
The proviso added after Regulation 9(2)(d) in terms of Gazette Notification
published on17.11.2009 reads as follows:-

“Further provided that in determining the merit and the entrance test for
postgraduate admission weightage in the marks may be given as an incentive
@ 10% of the marks obtained for each year in service in remote or difficult
areas up to the maximum of 30% of the marks obtained.”

9. The Court noted the submissions of the learned counsel appearing for
the parties and directed as follows:-
“In the circumstances, we direct that the State Government shall as
expeditiously as possible revise and redraw the merit list of the
candidates keeping in view Regulation 9 of the Medical Council of India
Postgraduate Medical Education Regulations, 2000 and giving to the eligible
candidates such weightage as may be due to them for rendering service in
notified rural and/or difficult areas and to grant admission to the
candidates found suitable for the same on the basis of such redrawn merit
list. This exercise shall be completed before 30-5-2016, the last date
fixed for granting of admission. The entire exercise so conducted shall,
however, remain subject to the outcome of these proceedings”.

10. The matter was finally decided on 16.08.2016. The three-Judge Bench
in Dinesh Singh Chauhan (supra) referred to the decisions in AIIMS
Students’ Union v. AIIMS and others[6], State of M.P. and others v. Gopal
D. Tirthani and others[7], Satyabrata Sahoo and others v. State of Orissa
and others[8] and Sudhir N. (supra) and ruled that Regulation 9 per se
makes no distinction between Government and non-Government colleges for
allocation of weightage of marks to in-service candidates. Instead, it
mandates preparation of one merit list for the State on the basis of
results in NEET and further, regarding in-service candidates, all it
provides is that the candidate must have been in-service of a
Government/public Authority and served in remote and difficult areas
notified by the State Government and the Competent Authority from time to
time. The Court further held that the authorities are obliged to continue
with the admission process strictly in conformity with Regulation 9.
Elucidating the proposition, the Court expressed thus:-
“The fact that most of the direct candidates who have secured higher marks
in the NEET than the in-service candidates, may not be in a position to get
a subject or college of their choice, and are likely to secure a subject or
college not acceptable to them, cannot be the basis to question the
validity of proviso to Clause IV of Regulation 9. The purpose behind
proviso is to encourage graduates to join as medical officers and serve in
notified remote and difficult areas of the State. The fact that for quite
some time no such appointments have been made by the State Government also
cannot be a basis to disregard the mandate of proviso to Clause IV-of
giving weightage of marks to the in-service candidates who have served for
a specified period in notified remote and difficult areas of the State.”

Thereafter, the three-Judge Bench opined:-
“The provision in the form of granting weightage of marks, therefore, was
to give incentive to the in-service candidates and to attract more
graduates to join as Medical Officers in the State Health Care Sector. The
provision was first inserted in 2012. To determine the academic merit of
candidates, merely securing high marks in the NEET is not enough. The
academic merit of the candidate must also reckon the services rendered for
the common or public good. Having served in rural and difficult areas of
the State for one year or above, the incumbent having sacrificed his career
by rendering services for providing health care facilities in rural areas,
deserve incentive marks to be reckoned for determining merit. Notably, the
State Government is posited with the discretion to notify areas in the
given State to be remote, tribal or difficult areas. That declaration is
made on the basis of decision taken at the highest level; and is applicable
for all the beneficial schemes of the State for such areas and not limited
to the matter of admissions to Post Graduate Medical Courses. Not even one
instance has been brought to our notice to show that some areas which are
not remote or difficult areas has been so notified. Suffice it to observe
that the mere hypothesis that the State Government may take an improper
decision whilst notifying the area as remote and difficult, cannot be the
basis to hold that Regulation 9 and in particular proviso to Clause IV is
unreasonable. Considering the above, the inescapable conclusion is that the
procedure evolved in Regulation 9 in general and the proviso to Clause (IV)
in particular is just, proper and reasonable and also fulfill the test of
Article 14 of the Constitution, being in larger public interest.”

11. Lastly, the Court posed the question whether the arrangement directed
in terms of order dated 12.05.2016 by the Court should have prospective
effect or also apply to admissions for academic year 2015-2016, for the
subject matter of challenge before the High Court pertained to the academic
year 2015-2016, the dispensation directed in terms of Order dated 12th May
2016 should apply thereto. However, considering the fact that the said
admission process had been completed and all concerned had acted upon on
that basis and that the candidates admitted to the respective Post Graduate
Degree Courses in the concerned colleges had also commenced their studies,
the Court held that it would not be appropriate to unsettle that position
given the fact that neither the direct candidates nor the eligible in-
service candidates who had worked in remote and/or difficult areas in the
State had approached the Court for such relief. The Court further held that
it was only the in-service candidates who had not worked in remote and/or
difficult areas in the State approached the Court for equating them with
their counterparts who had worked in remote and/or difficult areas in the
matter of reservation of seats for in-service candidates. The Court was of
the view that if at that distance of time, the settled admissions were to
be disturbed by quashing the entire admission process for academic year
2015-2016, it would inevitably result in all the seats in the State almost
over 500 in number remaining unfilled for one academic year; and that the
candidates to be admitted on the basis of fresh list for academic year 2015-
2016 will have to take fresh admission coinciding with the admissions for
academic year 2016-2017 which would necessitate doubling the strength of
seats in the respective colleges for the current academic year to
accommodate all those students, which may not be feasible and is avoidable.
In the peculiar facts of the case, the Court moulded the relief in the
appeals by directing all concerned to follow the admission process for
academic year 2016-2017 and onwards strictly in conformity with the
Regulations in force, governing the procedure for selection of candidates
for Post Graduate Medical Degree Courses including determination of
relative merit of the candidates who had appeared in NEET by giving
weightage of incentive marks to eligible in-service candidates. The Court
ruled that the High Court was justified in quashing the Government Order
providing for reservation to in-service candidates, being violative of
Regulation 9 as in force. It modified the operative direction given by the
High Court and instead directed that admission process for Academic Year
2016-2017 onwards to the Post Graduate Degree Course in the State should
proceed as per Regulation 9 including by giving incentive marks to eligible
in-service candidates in terms of proviso to Clause IV of Regulation 9
(equivalent to third proviso to Regulation 9(2) of the Old Regulations
reproduced in the interim order dated 12th May 2016). The Court thereafter
directed:-
“We, accordingly, mould the operative order of the High Court to bring it
in conformity with the direction contained in the interim order dated
12th May, 2016 but to be made applicable to Academic Year 2016-17 onwards
on the basis of Regulation 9 as in force. We are conscious of the fact that
this arrangement is likely to affect some of the direct candidates, if not
a large number of candidates whose applications were already processed by
the competent Authority for concerned Post Graduate Degree Course for
Academic Year 2016-17. However, their admissions cannot be validated in
breach of or disregarding the mandate of Regulation 9, as in force. The
appeals against the judgment of the High Court of Judicature at Allahabad
dated 7th April, 2016 are disposed of accordingly.”

12. After so stating, this Court adverted to the second set of appeals
arising from the judgment of the High Court of Allahabad, Lucknow Bench
dated 27.03.16 wherein it had taken the view that the direction to prepare
a fresh merit list vide interim order dated 12.05.16 was in respect of only
such eligible and in service candidates as had submitted applications for
admission to post-graduate courses for relevant academic year within the
stipulated time and the direction was not to consider all similarly placed
persons (eligible in-service candidates) irrespective whether they had made
applications for admission to post-graduate degree courses or otherwise.
Concurring with the view of the High Court, the appeals were dismissed.
Eventually, the Court clarified the position:-

“We make it clear that we have not examined the correctness of the fresh
merit list prepared by the concerned Authority in terms of interim order
dated 12.05.2016. If any candidate is aggrieved on account of wrong
placement in the fresh merit list or being in violation of this decision,
will be free to question the same by way of appropriate proceedings. That
challenge can be considered on its own merit.”

13. The appellants, as the facts would unroll, filed writ petition before
the High Court seeking writ of mandamus for holding the second, third and
mop-up round of counselling as prescribed in the information brochure and
to ensure that no seats in any of the courses advertised in the brochure is
allowed to go vacant in the academic session 2016-2017. The appellants
contended before the High Court that the respondents were bound to give
effect to the prescription contained in the information brochure which is
mandatory and, therefore, the authorities are under obligation to hold
second and third round of counselling and that they had misread and
misapplied the judgment dated 16.08.2016; that there was infringement of
their rights as they had been denied admission in the institution of their
choice in accordance with merit that too when number of seats were lying
vacant in several medical colleges; that in the previous academic session
2013-2014, the counselling was done after the cut-off date and the
admissions were given to the candidates and hence, it would be in the
interest of the students to issue directions for filling up unfilled seats.

14. Learned counsel for respondent No.2, opposing the relief sought by
the appellant, submitted before the High Court that this Court in Mridul
Dhar (Minor) (supra) has held that time schedule in respect of admission
in postgraduate courses and super speciality courses should be strictly
adhered to wherever provided; that there should not be midstream
admissions; that admissions should not be in excess of sanctioned intake
capacity or quota and carrying forward of unfilled seats of one academic
year to another is not permissible. Reliance was also placed on the
authority in Priya Gupta (supra), wherein it was directed that if anyone
who fails to comply with the directions stricto sensu shall be liable for
action under the provisions of the Contempt of Courts Act. It was further
contended before the High Court by the respondent No.2 that in terms of the
interim order of this Court, all the seats were allotted to the respective
candidates and the admission process stood completed by 30.05.2016 and as
regards unfilled seats, only 11 seats were lying vacant on account of non-
joining of the candidates and no further steps could be taken on account of
embargo put by the MCI with regard to the last date for completion and the
time frame could only be altered or modified by this Court.
15. Considering the rival submissions, the High Court accepted the
submissions of the respondent and dismissed the writ petition. Hence, the
present appeal.
16. We have heard Mr. Yatindra Singh, learned senior counsel along with
Mr. A.S. Pundir, learned counsel for the petitioners and Ms. Indu Malhotra,
learned senior counsel, Mr. Irshad Ahmad, AAG and Mr. Gaurav Sharma learned
counsel for the respondents.
17. Learned senior counsel for the appellants would submit that the maxim
actus curiae neminem gravabit or “an act of the court shall prejudice no
man” is a settled principle of law and applicable in the present case. It
is further contended that the delay in holding counselling was due to the
orders passed by or delay in this Court which should not prejudice the
appellants; that there was no delay on the part of the appellants but on
account of orders passed by this Court or delay was caused in the
proceedings or time taken by the State or by the MCI to file reply; that
the Information Brochure of the examination body provided for holding three
round of counselling and then mop-up round and under the latest amendments
of the regulations, only two rounds of counselling was permitted and in the
case of the appellants only one round of counselling had taken place and
the second round was yet to take place; that the brochure as well as
regulations provide counselling to be held first in which all can
participate and thereafter the mop-up round to be conducted; that in the
instant case, second round of counselling had not taken place and it should
be held first and then, if the need be, the mop-up round should be held;
that 71 seats are lying vacant in the State Government Colleges and non-
filling of these seats will lead to waste of government investment, its
resources and their full potential will not be utilized; that it is in
public interest that further counselling should be held as has been held
for University of Delhi and the States of Telangana and Andhra Pradesh.

18. Per contra, learned counsel for the State submitted that the legal
position with regard to vacant seats after the cut-off date and extra round
of counselling is settled in the decision of this Court in Supreet Batra
and others v. Union of India and others[9], wherein it has been held that
after the expiry of cut-off date, the seats lying vacant cannot be filled
up by way of conducting extra round of counselling. He further submitted
that pursuant to the order of the High Court quashing the policy decision
of the State Government wherein provisions were made for giving reservation
in post graduate courses for the doctors of Provincial Medical Services,
who had worked continuously for three years in notified backward areas
within the State, State of U.P. had preferred special leave petition
wherein this Court vide order dated 12.05.2016 directed the State
Government to revise and redraw the merit list and in pursuance of that
order, State Government had redrawn the merit list and fresh counselling
was held on 27.05.2016 and all the seats were filled up, except 71 seats
which remained vacant due to non-availability of the candidates for the
said courses. Therefore, in such circumstances no further counselling was
required. It is further submitted by the learned counsel for the State
that the seats became vacant after the cut-off date in different Government
Medical Colleges because after taking admission some of the candidates had
either resigned from the allotted seats or not joined the courses after
admission.
19. Be it noted that IA No.3 of 2016 was filed by the applicants seeking
“mop-up” round of counselling for filling up the vacant seats which arose
due to non-joining or resignation after de novo counselling on the basis of
clause 15 of the Information Brochure for the UPPGMEE, 2016. Ms. Indu
Malhotra, learned senior counsel submits that in the present case only one
round of counselling took place as the criteria for preparing the merit
list was changed vide order of this Court. It is further submitted by her
that after de novo round of counselling held on 30.05.2016, large number of
candidates did not join the allotted seats as a result of which almost 100
seats in various Government medical colleges have fallen vacant. To
substantiate her claim, she relied on the order dated 01.09.2016 and
08.09.2016 passed by this Court in S.L.P. (Civil) No. 19633 of 2016 wherein
this Court directed the University of Delhi to conduct one more round of
counselling for vacant seats within a period of two weeks and the States of
Andhra Pradesh and Telangana to conduct one more round of counselling to
fill up all the vacant seats. In effect, the submission of the learned
senior counsel is that the appellants and applicants are similarly situated
and by redrawing the merit list, the right of the applicants to appear in
the second and third counselling is denied.
20. The submission of Mr. Singh, learned senior counsel is fundamentally
entrenched on the principle actus curiae neminem gravabit. The said
submission is structured on the factual score that the time schedule could
not be followed because of the directions of this Court issued vide order
dated 12.05.2016 and eventually it became final on 16.08.2016 for which no
fault can be found with the appellants. The prayer of the appellants to
hold further counselling in respect of 71 seats was done in promptitude
and, therefore, the High Court would have been well advised to direct for
holding counselling or mop-up counselling so that the seats would not
remain vacant and the procedure would have been duly complied with.
Reliance has been placed on certain orders passed by this Court in respect
of the University of Delhi and the States of Telangana and Andhra Pradesh.

21. As far as States of Telangana and Andhra Pradesh is concerned, it is
necessary to note that the High Court had issued certain directions for
filling up the seats. The same was challenged by the Medical Council of
India. Taking note of the peculiar facts and circumstances of the newly
born States, the Court had passed the following order:-

“We take note of the fact that 86 seats in the State of Andhra Pradesh and
32 seats in the State of Telagnana are available in the Government colleges
in both the States. Having regard to the facts and circumstances of the
case, we direct that the University(s) that conducted the last counseling
shall conduct a counseling within two weeks hence after giving due
publicity. A student who has already taken admission will not be eligible
to participate in this counseling. Needless to say, the University shall
follow the procedure as provided in the admission brochure/prospectus. We
further say that the vacant seats are meant only for Government colleges
and Universities. We repeat at the cost of repetition that we have passed
this order in the special features of the case.”

22. The situation in the case of the said two States is totally different
than the present one. In the instant case, the appellants approached the
High Court only on 01.09.2016. They did not choose to move this Court when
the case of Dinesh Singh Chauhan (supra) was pending. They were aware that
such a litigation was pending before this Court. Despite the same, they
chose to maintain a sphinx like silence. It is beyond any trace of doubt
that admission to post graduate courses for the academic session 2016-2017
in the State of Uttar Pradesh stood concluded by this Court as per the
decision in Dinesh Singh Chauhan (supra). Had the grievance been raised
before this Court at the time when the special leave petitions were filed
in respect of the seats lying vacant, the matter could possibly have been
differently perceived. Mr. Gaurav Sharma, learned counsel appearing for
the MCI would submit that the appellants only woke up from the slumber
after this Court, in exercise of power under Article 142 of the
Constitution, permitted the States of Andhra Pradesh and Telangana to hold
counselling concurring with the view of the High Court and also directed
University of Delhi to conduct an extra round of counselling beyond the
cut-off date regard being had to the peculiar facts and circumstances of
the case. It is urged by him that in such a situation, the appellants
cannot be permitted to advance the stand that nobody should suffer for the
fault of the court.

23. It is manifest that effective and complete counselling was held in
the case of Uttar Pradesh on the basis of the verdict rendered by this
Court in Dinesh Singh Chauhan (supra) and the appellants, after certain
orders were passed by this Court, felt to have got the wake up call to
agitate their grievance.
24. The seminal question that is required to be posed is whether the
maxim actus curiae neminem gravabit would be applicable to such a case. In
Jang Singh v. Brij Lal and others[10], a three-Judge Bench noted that there
was error on the part of the court and the officers of the court had
contributed to the said occur. Appreciating the fact situation, the Court
held:-
“…… It is no doubt true that a litigant must be vigilant and take care but
where a litigant goes to Court and asks for the assistance of the Court so
that his obligations under a decree might be fulfilled by him strictly, it
is incumbent on the Court, if it does not leave the litigant to his own
devices, to ensure that the correct information is furnished. If the Court
in supplying the information makes a mistake the responsibility of the
litigant, though it does not altogether cease, is at least shared by the
Court. If the litigant acts on the faith of that information the Courts
cannot hold him responsible for a mistake which it itself caused. There is
no higher principle for the guidance of the Court than the one that no act
of Courts should harm a litigant and it is the bounden duty of Courts to
see that if a person is harmed by a mistake of the Court he should be
restored to the position he would have occupied but for that mistake. This
is aptly summed up in the maxim:“Actus curiae neminem gravabit”.”

25. Noting that there was mistake by the concerned district court, relief
was granted by stating so:-
“………In view of the mistake of the Court which needs to be righted the
parties are relegated to the position they occupied on January 6, 1958,
when the error was committed by the Court which error is being rectified by
us nunc pro tunc.”

26. Another three-Judge Bench in Jagannath Singh and others v. Dr. Ram
Naresh Singh[11], took note of the fact that the judgment by the High Court
had been rendered ex-parte, and the application for recall did not impress
the High Court. Appreciating the factual matrix that there was an error in
the cause list and accepting that there was an omission to mention the case
correctly in the cause list and treating it as a a mistake of the court,
the Court held that though there was some negligence on the part of the
counsel or of his clerk but it was not so grave as to disentitle the party
to be heard, and in any event, the alleged contemnors could not be punished
for a mistake on the part of their counsel or the counsel’s clerk.
Being of this view, this Court set aside the order with costs.
27. In Atma Ram Mittal v. Ishwar Singh Punia[12], this Court, in the
context of interpretation of Section 13(1) in juxtaposition with Section
1(3) of the Haryana Urban (Control of Rent and Eviction) Act, 1973,
adopting the purposive interpretation ruled:-
“It is well-settled that no man should suffer because of the fault of the
court or delay in the procedure. Broom has stated the maxim “actus curiae
neminem gravabit” — an act of court shall prejudice no man. Therefore,
having regard to the time normally consumed for adjudication, the ten
years’ exemption or holiday from the application of the Rent Act would
become illusory, if the suit has to be filed within that time and be
disposed of finally. It is common knowledge that unless a suit is
instituted soon after the date of letting it would never be disposed of
within ten years and even then within that time it may not be disposed of.
That will make the ten years holiday from the Rent Act illusory and provide
no incentive to the landlords to build new houses to solve problem of
shortages of houses. The purpose of legislation would thus be defeated.
Purposive interpretation in a social amelioration legislation is an
imperative irrespective of anything else.”

28. The aforesaid authorities deal with three different situations.
There cannot be an iota of doubt that no prejudice shall be caused to
anyone due to the fault of the court, but it is to be seen in what
situations the court can invoke the maxim “actus curiae neminem gravabit”.
In this regard, reference to the authority in Jayalakshmi Coelho v. Oswald
Joseph Coelho[13] would be apt. In the said case, the Principal Judge,
Family Court, Bombay had modified the earlier decree. The same was
challenged in the writ petition which was dismissed. The Division Bench
confirmed the order of the learned Single Judge, which compelled the
appellant to approach this Court. Dealing with the principle of
rectification of decree under Section 152 CPC, the Court opined that there
can be hardly any doubt that any error occurred in the decree on account of
arithmetical or clerical error or accidental slip may be rectified by the
court. It has been further observed that the basis of the said provision
is founded on the maxim that an act of court will prejudice no man. The
Court referred to the authorities in Assam Tea Corpn. Ltd. v. Narayan
Singh[14], L. Janakirama Iyer v. P.M. Nilakanta Iyer[15], Bhikhi Lal v.
Tribeni[16], Master Construction Co. (P) Ltd. v. State of Orissa and
another[17], Dwaraka Das v. State of M.P. and another[18] and
Thirugnanavalli Ammal v. P. Venugopala Pillai[19] and, eventually analysing
the facts, opined that rectification of the decree was totally
misconceived.
29. In this regard, we may usefully refer to a passage from Kalabharati
Advertising v. Hemant Vimalnath Narichania and others[20], wherein it has
been ruled that the maxim actus curiae neminem gravabit, which means that
the act of the court shall prejudice no one, becomes applicable when a
situation is projected where the court is under an obligation to undo the
wrong done to a party by the act of the court. In a case, where any
undeserved or unfair advantage has been gained by a party invoking the
jurisdiction of the court, and the same requires to be neutralized, the
said maxim is to be made applicable.
30. In this regard, reference to the Constitution Bench decision in Sarah
Mathew v. Institute of Cardio Vascular Diseases and others[21] would be
seemly. In the said case, the question for consideration was whether for
the purposes of computing the period of limitation under Section 468 CrPC
the relevant date is the date of filing of the complaint or the date of
institution of the prosecution or whether the relevant date is the date on
which a Magistrate takes cognizance of the offence. Answering the issue,
the Court held that for that purpose computing the period of limitation
under Section 468 CrPC the relevant date is the date of filing of the
complaint or the date of institution of prosecution and not the date on
which the Magistrate takes cognizance. In the course of deliberation, the
larger Bench observed:-
“… The object of the criminal law is to punish perpetrators of crime. This
is in tune with the well-known legal maxim nullum tempus aut locus occurrit
regi, which means that a crime never dies. At the same time, it is also the
policy of law to assist the vigilant and not the sleepy. This is expressed
in the Latin maxim vigilantibus et non dormientibus, jura subveniunt.
Chapter XXXVI CrPC which provides limitation period for certain types of
offences for which lesser sentence is provided draws support from this
maxim. But, even certain offences such as Section 384 or 465 IPC, which
have lesser punishment may have serious social consequences. The provision
is, therefore, made for condonation of delay. Treating date of filing of
complaint or date of initiation of proceedings as the relevant date for
computing limitation under Section 468 of the Code is supported by the
legal maxim actus curiae neminem gravabit which means that the act of court
shall prejudice no man. It bears repetition to state that the court’s
inaction in taking cognizance i.e. court’s inaction in applying mind to the
suspected offence should not be allowed to cause prejudice to a diligent
complainant. Chapter XXXVI thus presents the interplay of these three legal
maxims. The provisions of this Chapter, however, are not interpreted solely
on the basis of these maxims. They only serve as guiding principles.”

31. It is noticeable from the aforesaid passage that the interpretation
was made in accordance with the Code and the legal maxim was taken as a
guiding principle. Needless to say, it is well settled in law that no one
should suffer any prejudice because of the act of the court. The
authorities that we have referred to dealt with the different factual
expositions. The legal maxim that has been taken recourse to cannot
operate in a vacuum. It has to get the sustenance from the facts. As is
manifest, after the admissions were over as per the direction of this
Court, the appellants, who seemed to have resigned to their fate, woke up
to have control over the events forgetting that the law does not assist the
non-vigilant. One cannot indulge in luxury of lethargy, possibly nurturing
the feeling that forgetting is a virtue, and thereafter, when the time has
slipped through, for it waits for none, wake up and take shelter under the
maxim “actus curiae neminem gravabit”. It is completely unacceptable.
32. Considering the precedents where the legal maxim actus curiae neminem
gravabit has been applied, we are compelled to form the opinion that the
said maxim is not applicable to the factual score of the present case. Once
the said principle is not applicable, the rest of the submissions
pertaining to seats going waste or the State losing its investment or the
suffering of the students or claim of parity with other students have no
legs to stand upon. It is because to give indulgence to the appellants or
the interfering with the impugned order would only give rise to chaos; and
it is an accepted norm that law does not countenance any chaos and abhors
anarchy.
33. Consequently, the appeal, being sans substance, stands dismissed.
There shall be no order as to costs.

..........................................J.
(Dipak Misra)

.........................................J.
(Amitava Roy)
New Delhi;
March 21, 2017
-----------------------
[1]

[2] (2016) 9 SCC 749
[3]

[4] (2005) 2 SCC 65
[5]

[6] (2012) 7 SCC 433
[7]

[8] 2016 SCC OnLine All 622
[9]

[10] (2015) 6 SCC 685
[11]

[12] (2002) 1 SCC 428
[13]

[14] (2003) 7 SCC 83
[15]

[16] (2012) 8 SCC 203
[17]

[18] (2003) 3 SCC 370
[19]

[20] AIR 1966 SC 1631
[21]

[22] (1970) 1 SCC 573
[23]

[24] (1988) 4 SCC 284
[25]

[26] (2001) 4 SCC 181
[27]

[28] AIR 1981 Gau 41
[29]

[30] AIR 1962 SC 633
[31]

[32] AIR 1965 SC 1935
[33]

[34] AIR 1966 SC 1047
[35]

[36] (1999) 3 SCC 500
[37]

[38] AIR 1940 Mad 29
[39]

[40] (2010) 9 SCC 437
[41]

[42] (2014) 2 SCC 62

Section 53A of T.P. Act - Section 16 of the Act, 1963, specific performance of a contract- = the right to claim protection under Section 53A of T.P. Act would not be available, if the transferee remains passive without taking effective steps and abstains from performing his part of the contract or conveying his readiness and willingness to that effect. Added to this, to reiterate, is the proviso to Section 53A of T.P. Act which excludes from the rigour of the said provision a transferee for consideration, who has no notice of the contract or of the part performance thereof. the materials on record do not unmistakably demonstrate that the original defendant during his lifetime and on his demise, his heirs i.e. the respondents had been always and ever ready and willing to perform his/their part of the contract and that the appellant/plaintiff had notice either of the agreement for sale or the fact that the original defendant had been in occupation of the suit premises by way of part performance of the contract.- Apropos, Section 16 of the Act, 1963, specific performance of a contract cannot be enforced in favour of a person who, inter alia, fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him unless prevented or waived by the other party thereto. As mentioned hereinabove, though there is an averment in the written statement that before the death of the predecessor-in-interest of the vendors of the appellant/plaintiff, the original defendant had requested him to execute the sale deed and after his demise, he made similar demands with them, evidence is jejune to irrefutably establish the readiness and willingness of his, during his lifetime and after his death, of the respondents, to perform his/their part of the contract. It is also not the case of either the original defendant or the present respondents that his/their performance of the contract had been either prevented or waived by either the vendors of the appellant/plaintiff or their predecessor-in-interest at any point of time.- Noticeably, the sale deed executed in favour of the appellant/plaintiff and proved in evidence has not been annulled as on date and is thus valid and subsisting.- conclusions recorded by the courts below are based on an erroneous understanding of the prescriptions of Sections 53A of T.P. Act. The determinations made thus cannot be sustained.- the respondents are not entitled to the benefit of the protection of Section 53A of the T.P. Act read with Section 16 of the Act, 1963.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 4311-4312 OF 2017
(ARISING OUT OF S.L.P (C) NOS.29405-29406 OF 2008)

VASANTHI .…APPELLANT

VERSUS

VENUGOPAL (D) THR. L.RS. ....RESPONDENT(S)
J U D G M E N T

AMITAVA ROY,J.

Leave granted.
2. The impugnment herein is both of the judgment and order dated
31.7.2006, rendered by the Single Judge of the High Court of Judicature at
Madras in A.S. No. 124 of 1990, preferred by the appellant/plaintiff
questioning the decision of the Subordinate Judge, Cuddalore dated
28.4.1989 in O.S. No. 172 of 1987 as well as the order dated 8.10.2007,
passed by the Division Bench of the said High Court rejecting the Letters
Patent Appeal SR. No.16958 of 2007 preferred by her against the dismissal
of Appeal A.S. No.124 of 1990, as not maintainable in the face of Section
100-A of the Code of Civil Procedure, 1908 (as amended) (hereinafter
referred to as “CPC/Code”).
3. We have heard Mr. R. Basant, learned senior counsel for the
appellant/plaintiff and Ms. Malini Poduval, learned counsel for the
respondents.
4. As the rival assertions are integrated in the pleadings, a brief
reference thereto, is indispensable. The appellant/plaintiff instituted
O.S. No.172 of 1987 against the predecessor-in-interest of the present
respondents i.e. Venugopal (deceased) praying for a declaration of her
title in the suit property and also for recovery of possession thereof.
She claimed to have purchased the same vide registered sale deed dated
26.6.1982 for the consideration price of Rs.35,000/- from the sons of
Ramnathan Chettiar, the original owner, whereupon she was registered in the
municipal records as the title-holder thereof. She averred that at the
time of sale, the original defendant Venugopal was in possession of the
property as a tenant of her vendors on payment rent of Rs.100 per month.
As the defendant-Venugopal did neither accept her as his landlord nor
agreed to pay the enhanced rent of Rs. 150/-, as demanded, after causing
a notice to be served on him, the appellant/plaintiff filed an application
before the Rent Controller, Cuddalore being R.C. O.P. No. 29 of 1986 for
his eviction from the suit property.
5. In the said proceeding, the original defendant-Venugopal denied the
title of appellant/plaintiff in the suit property and claimed to be in
occupation thereof on the strength of an agreement of sale executed between
him and the original owner Ramnathan Chettair. At this, the
appellant/plaintiff instituted a suit claiming the reliefs, as
aforementioned, by pleading that neither she was aware of any such
agreement at the time of her purchase nor of any part performance thereof
as claimed and that even if any such agreement did exist, the
respondent/defendant was not entitled to remain in possession of the suit
property without enforcing the same, as contemplated in law. She
contended that she was a bona fide purchaser for value without notice of
such agreement and maintained that the defendant was not entitled to avail
the protection under Section 53A of the Transfer of Property Act, 1882 (for
short, hereinafter to be referred to as “T.P. Act”).
6. The original defendant-Venugopal in his written statement, while
reiterating that Ramnathan Chettiar was the owner of the suit property,
stoutly denied the transaction of sale by his sons in favour of the
plaintiff vide registered sale deed dated 26.6.1982. He also asserted that
the vendors of the appellant/plaintiff had no subsisting title in the suit
property to convey to her. He denied that his possession of the suit
property at the time of purported sale in favour of appellant/plaintiff was
that of a tenant under her vendors and reiterated that pursuant to an
agreement of sale dated 20.5.1975 with the original owner Ramnathan
Chettiar, he had by installments, in all paid Rs. 26,000/- by 12.4.1976
which formed a major part of the consideration price. He stated further
that at the time of execution of the agreement of sale dated 20.5.1975,
one Purushothaman was in occupation of the suit property as a tenant under
the original owner, who following the compromise between him (tenant) and
the landlord vacated the suit premises, whereafter possession thereof was
delivered by the original owner to him on 1.7.1976 and that since then, he
paid as well the property tax therefor. However, though agreed upon and
inspite of repeated insistences, the original owner did not execute the
sale deed and after his death, his sons also avoided to do so. He claimed
protection of his possession in terms of Section 53A of T.P. Act and also
alleged that the plaintiff was not a bona fide purchaser without notice of
the agreement for sale between him and the original owner. He pleaded as
well that his right, secured under Section 53A of the T.P. Act, did not
stand effaced by any period of limitation, as time was not the essence of
contract for enforcing the specific performance thereof. The parties
though did exchange additional pleadings, it is inessential to dilate
thereon.
7. The Trial Court, on the basis of the pleadings, framed issues and by
its verdict dated 28.4.1989 dismissed the suit holding inter alia that the
possession of the original defendant of the suit property was protected
under Section 53A of the TP Act, as the ingredients thereof stood complied
with by him and that the appellant/plaintiff was not entitled to the relief
of declaration or possession, as sought for.
8. Being aggrieved, the appellant/plaintiff preferred appeal being
A.S. No.124 of 1990 before the High Court of Judicature at Madras and as
hereinbefore mentioned, the same also met the same fate. Her Letters
Patent Appeal being L.P.A. SR No.16958 of 2007 was dismissed as not
maintainable being in the teeth of Section 100-A of C.P.C..
9. Mr. Basant has assiduously urged that as Section 100-A of CPC is not
attracted to the LPA filed by the appellant/plaintiff, dismissal thereof,
by reference to that provision, is patently erroneous. Without prejudice
to this plea, the learned senior counsel has urged that as the suit
property had been purchased by the appellant/plaintiff by a registered
sale deed dated 26.6.1982 from the owners thereof and as the transaction
has remained unimpeached, the agreement for sale dated 20.5.1975 between
the predecessor in-interest of the respondents and the original owner, even
if valid, is of no consequence and, therefore, both the forums below,
have grossly erred in law and on facts in dismissing her suit. He further
contended that not only the appellant/plaintiff is a bona fide purchaser
for value without any notice of the said agreement, in the face of the
failure of the respondents to prove the readiness and willingness of their
predecessor to perform his part of the contract at all relevant times and
also his omission to file a suit for specific performance within the
prescribed period of limitation, no protection under Section 53A of T.P.
Act was available to him and presently to the respondents. Further as the
respondents/defendants have declined to admit the appellant/plaintiff as
their landlord, their occupation of the suit premises is that of rank
trespassers and as such, are liable to be evicted. Mr. Basant placed
reliance on the decision of this Court in Kamla Devi vs. Kushal Kanwar and
another (2006) 13SCC 295 and Mohd. Saud and another vs. Dr. (Maj.) Shaikh
Mahfooz and others (2010) 13 SCC 517.
10. Ms. Malini Poduval, learned counsel for the respondents, in
repudiation, has argued that the vendors of the appellant/plaintiff, having
categorically admitted the agreement for sale dated 20.5.1975 between
their predecessor-in-interest Ramnathan Chettiar and the original defendant
Venugopal and his possession of the suit property on the basis thereof, the
finding that the benefit of Section 53A of the TP Act is extendable to
them, is unexceptionable in the facts and circumstances of the case. Not
only the original defendant had been ever ready and willing to perform his
part of contract, the purported purchase by the appellant/plaintiff from
the heirs of Ramnathan Chettiar, being with the full knowledge of said
agreement and the possession of the original defendant, on the basis
thereof, the transaction of sale did neither convey any title to her nor
was it bona fide for all intents and purposes. According to the learned
counsel, the suit has been rightly dismissed by both the forums and the
dismissal of the LPA filed by the appellant/plaintiff is also unassailable.
11. The competing propositions have been duly addressed. The disputation
pertaining to the maintainability of the LPA deserves attention at the
threshold. Section 100-A of the CPC was inserted by the amendment Act 104
of 1976, which reads as under:
“100-A. No further appeal in certain cases –
Notwithstanding anything contained in any Letters Patent for any High
Court or in any other instrument having the force of law in any other law
for the time being in force, where any appeal from an appellate decree or
order is heard and decided by a Single Judge of a High Court, no further
appeal shall lie from the judgment, decision or order of such Single Judge
in such appeal or from any decree passed in such appeal.”

12. Though this Section was amended by the Amendment Act 46 of 1999,
reference thereto is avoided as the said amendment was not given effect to.

13. This provision underwent another amendment by Amendment Act 22 of
2002, to be refashioned as hereinbelow.
“100-A: No further appeal in certain cases – Notwithstanding anything
contained in any Letters Patent for any High Court or in any instrument
having the force of law or in any other law for the time being in force,
where any appeal from an original or appellate decree or order is heard and
decided by a Single Judge of a High Court, no further appeal shall lie from
the judgment and decree of such Single Judge.”

14. This amended provision enforced w.e.f. 1.7.2002 predicated that
notwithstanding anything contained in any Letters Patent for any High Court
or in any instrument having the force of law or in any other law for the
time being in force, where any appeal from an original or appellate decree
or order is heard and decided by a Single Judge of a High Court, no further
appeal would lie from the judgment and decree of such Single Judge.
15. The purport and purview of this amended provision fell for the
scrutiny of this Court, amongst others in Kamla Devi (supra) and Mohd. Saud
(supra), wherein it was held in unambiguous terms that only Letters Patent
Appeal, filed prior to the coming into force of the said amendment vide Act
22 of 2002 would be maintainable and as a corollary, by virtue of the bar
contained therein, Letters Patent Appeal filed thereafter, would not be
maintainable.
16. As the contextual facts in these decisions are inessential, having
regard to the hyaline legal postulations as above, elaboration thereof is
avoided. The dismissal of the LPA of the appellant/plaintiff, in the face
of the above judicially adumbrated explication of Section 100-A of CPC by
this Court, cannot thus be faulted with.
17. Reverting to the availability of the protection of Section 53A of TP
Act to the original defendant and on his death, to the present respondents,
to reiterate, the evidence on record does proclaim that the agreement for
sale dated 20.5.1975 had indeed been executed between the predecessors-in-
interest of the vendors of the appellant/plaintiff and the respondents
herein, pursuant whereto, an amount of Rs. 26,000/- in all had been paid
by the proposed purchaser and the possession of the suit property had been
handed over to him in consideration thereof. As a matter of fact, at the
time of execution of said agreement, the suit property was in occupation of
a tenant of the proposed seller i.e. the predecessor-in-interest of the
vendors of the appellant/plaintiff and that following a compromise, the
tenant delivered possession of the suit property to the predecessor-in-
interest of the present respondents and since thereafter, they are in
occupation thereof. The evidence on record, however, does not in very
clear terms establish that the appellant/plaintiff had conscious notice or
knowledge of this agreement for sale at the time of her purchase.
Admittedly as well, neither the predecessor-in-interest of the respondents
nor they had taken recourse to law for specific performance of the
agreement. This assumes importance in view of the averment made in the
written statement that even prior to the demise of the predecessor-in-
interest of the vendors of the appellant/plaintiff, he did not comply with
the requests of the original defendant to get the sale deed executed and
his legal heirs, after his demise, also adopted the same non-cooperative
stance.
18. Section 53A of T.P. Act and Section 16 of the Specific Relief Act,
1964 (for short, hereinafter to be referred to as “Act, 1963”), being of
significant relevance are extracted hereunder:
“53A. Part performance.—Where any person contracts to transfer for
consideration any immoveable property by writing signed by him or on his
behalf from which the terms necessary to constitute the transfer can be
ascertained with reasonable certainty,
and the transferee has, in part performance of the contract taken
possession of the property or any part thereof, or the transferee, being
already in possession, continues in possession in part performance of the
contract and has done some act in furtherance of the contract,
and the transferee has performed or is willing to perform his part of the
contract,
then, notwithstanding that 2[***] where there is an instrument of transfer,
that the transfer has not been completed in the manner prescribed therefor
by the law for the time being in force, the transferor or any person
claiming under him shall be debarred from enforcing against the transferee
and persons claiming under him any right in respect of the property of
which the transferee has taken or continued in possession, other than a
right expressly provided by the terms of the contract:

Provided that nothing in this section shall affect the rights of a
transferee for consideration who has no notice of the contract or of the
part performance thereof.” (Emphasis supplied)

“16. Personal bars to relief.—Specific performance of a contract cannot be
enforced in favour of a person—

(a) who would not be entitled to recover compensation for its breach; or

(b) who has become incapable of performing, or violates any essential term
of, the contract that on his part remains to be performed, or acts in fraud
of the contract, or willfully acts at variance with, or in subversion of,
the relation intended to be established by the contract; or

(c) who fails to aver and prove that he has performed or has always been
ready and willing to perform the essential terms of the contract which are
to be performed by him, other than terms the performance of which has been
prevented or waived by the defendant. Explanation.—For the purposes of
clause (c),—
(i) where a contract involves the payment of money, it is not essential for
the plaintiff to actually tender to the defendant or to deposit in court
any money except when so directed by the court;
(ii) the plaintiff must aver performance of, or readiness and willingness
to perform, the contract according to its true construction.”
(Emphasis supplied)

19. As would be patent from the above quotes, the protection of a
prospective purchaser/transferee of his possession of the property
involved, is available subject to the following prerequisites:
(a) There is a contract in writing by the transferor for transfer for
consideration of any immovable property signed by him or on his behalf,
from which the terms necessary to constitute the transfer can be
ascertained with reasonable certainty;

(b) The transferee has, in part performance of the contract, taken
possession of the property or any part thereof, or the transferee, being
already in possession, continues in possession in part performance of the
contract;
(c) The transferee has done some act in furtherance of the contract and
has performed or is willing to perform his part of the contract.

20. In terms of this provision, if the above pre-conditions stand
complied with, the transferor or any person claiming under him shall be
debarred from enforcing against the transferee and person(s) claiming under
him, any right in respect of the property of which the transferee has taken
or continue in possession, other than a right expressly provided by the
terms of the contract, notwithstanding the fact, that the transfer, as
contemplated, had not been completed in the manner prescribed therefor by
the law for the time being in force. Noticeably, an exception to this
restraint is carved out qua a transferee for consideration, who has no
notice of the contract or of the part performance thereof.
21. On a perusal of the evidence adduced, it transpires that the sale
deed dated 26.6.1982 had been proved on behalf of the appellant/plaintiff.
PW1 Subramanian, the husband of the appellant/plaintiff in his testimony
has stated that at the time of purchase, when he enquired about the
possession of the original defendant, his vendors told him that he was in
occupation of the premises as a tenant and that after the purchase, as he
(original defendant) refused to pay the rent, the application before the
Rent Controller, Cuddalore was filed for his eviction therefrom and it was
in that proceeding, that the original defendant disclosed about the
agreement for sale, whereafter the suit had to be filed seeking declaration
of title and possession. This witness categorically denied about his
knowledge of such agreement for sale at the time of purchase.

22. PW2 Deenadayalan, one of the sons of the original owner Ramnathan
Chettiar on oath affirmed the execution of the sale deed dated 26.6.1982
in favour of the appellant/plaintiff for a consideration of Rs. 35,000/-.
Though, this witness admitted the agreement for sale between the original
defendant and his father, he mentioned that on enquiry, his father had told
him that the agreement had lapsed as the purchase was not made within time.
This witness also categorically stated that he did not disclose about the
agreement for sale to the appellant/plaintiff and instead had disclosed
to her husband that the original defendant was only a tenant in possession
of the suit property.
23. As against this, the respondents, amongst others sought to rely on
the testimony of DW1 to the effect that he had always been ready and
willing to perform the contract and also in the reply to the notice sent by
the vendors of the appellant/plaintiff conveying the cancellation of the
agreement, he reiterated his readiness and willingness to get the sale
deed, on the basis of the agreement for sale, executed.

24. The attendant facts and the evidence on record, though demonstrate
that an agreement for sale of the suit property had been entered into on
20.5.1975 between the predecessor-in-interest of the vendors of the
appellant/plaintiff and the original defendant and that an amount of Rs.
26,000/- had been paid by the latter for which the possession of the suit
property had been delivered to him, to reiterate, adequate evidence is not
forthcoming to convincingly authenticate that the proposed purchaser and
thereafter his heirs i.e. the present respondents, had always been ready
and willing to perform his/their part of the contract, which amongst
others, is attested by his/their omission to enforce the contract in law.
His/their readiness and willingness to perform his/their part of the
contract is also not pleaded in the written statement in clear and specific
term as required. Further the materials on record also do not testify in
unequivocal terms that at the time of purchase, the appellant/plaintiff had
the knowledge/information of such agreement for sale or the part
performance as claimed, so as to repudiate her transaction to be neither
bona fide nor one with notice of such contract or the part performance
thereof, as comprehended in the proviso to Section 53A of the T.P. Act.
25. The fact that at the first instance, the appellant/plaintiff had
filed an application before the Rent Controller, Cuddalore for eviction of
the original defendant as a tenant, also attests her ignorance at that
point of time of the agreement for sale and his occupation of the premises
in part performance thereof.

26. This Court in Shrimant Shamrao Suryavanshi and another vs. Pralhad
Bhairoba Suryavanshi by Lrs. and others (2002) 3 SCC 676, while tracing
the incorporation of Section 53A in the TP Act, vide Act of 1929, acting on
the recommendations of the Special Committee on the issue, had ruled that
mere expiration of the period of limitation for bringing a suit for
specific performance would not debar a person in possession of an immovable
property by way of part performance from setting up a plea, as
contemplated therein in defence to protect his possession of the property
involved. It was however underlined that if the conditions precedent, as
enumerated, in Section 53A of the Act, are complied with, the law of
limitation would not come in the way of the said person to avail the
benefit of the protection to his possession as extended thereby even
though a suit for specific performance of a contract by him had gone barred
by limitation. Explicitly therefore, though mere expiry of the period of
limitation for a suit for specific performance may not be a bar for a
person in possession of an immovable property in part performance of a
contract for transfer thereof for consideration to assert the shield of
Section 53A of T.P. Act, it is nevertheless imperative that to avail the
benefit of such protection, all the essential pre-requisites therefor would
have to be obligatorily complied with.
27. In A. Lewis and another vs. M.T. Ramamurthy and others (2007) 14 SCC
87, it was propounded that the right to claim protection under Section 53A
of T.P. Act would not be available, if the transferee remains passive
without taking effective steps and abstains from performing his part of
the contract or conveying his readiness and willingness to that effect.
28. Added to this, to reiterate, is the proviso to Section 53A of T.P.
Act which excludes from the rigour of the said provision a transferee for
consideration, who has no notice of the contract or of the part
performance thereof.
29. In the contextual facts, as obtained herein, the materials on record
do not unmistakably demonstrate that the original defendant during his
lifetime and on his demise, his heirs i.e. the respondents had been always
and ever ready and willing to perform his/their part of the contract and
that the appellant/plaintiff had notice either of the agreement for sale or
the fact that the original defendant had been in occupation of the suit
premises by way of part performance of the contract.

30. Apropos, Section 16 of the Act, 1963, specific performance of a
contract cannot be enforced in favour of a person who, inter alia, fails to
aver and prove that he has performed or has always been ready and willing
to perform the essential terms of the contract which are to be performed by
him unless prevented or waived by the other party thereto. As mentioned
hereinabove, though there is an averment in the written statement that
before the death of the predecessor-in-interest of the vendors of the
appellant/plaintiff, the original defendant had requested him to execute
the sale deed and after his demise, he made similar demands with them,
evidence is jejune to irrefutably establish the readiness and willingness
of his, during his lifetime and after his death, of the respondents, to
perform his/their part of the contract. It is also not the case of either
the original defendant or the present respondents that his/their
performance of the contract had been either prevented or waived by either
the vendors of the appellant/plaintiff or their predecessor-in-interest at
any point of time.
31. Noticeably, the sale deed executed in favour of the
appellant/plaintiff and proved in evidence has not been annulled as on date
and is thus valid and subsisting.
32. On an overall view of the matter, we are of the opinion that the
conclusions recorded by the courts below are based on an erroneous
understanding of the prescriptions of Sections 53A of T.P. Act. The
determinations made thus cannot be sustained.
33. On an appraisal of the evidence on record, on the touchstone of the
above legal propositions, we are thus of the considered view, that though
the LPA preferred by the appellant/plaintiff is not maintainable in law,
the respondents are not entitled to the benefit of the protection of
Section 53A of the T.P. Act read with Section 16 of the Act, 1963.
34. In the result, civil appeal filed against the judgment and order
dated 31.7.2006, rendered in A.S. No. 124 of 1990 affirming the judgment
and order dated 28.4.1989 passed in O.S. No. 172 of 1987 is allowed and
Civil Appeal preferred against the judgment and order dated 8.10.2007
passed in LPA SR No. 16958 of 2007 is dismissed. As a consequence, the
suit filed by the appellant/plaintiff is decreed, as prayed for. No costs.

............................................J.
(DIPAK MISRA)

….........................................J.
(AMITAVA ROY)
NEW DELHI;
MARCH 21, 2017.

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Tuesday, March 28, 2017