- (1.) A common question of law emerges for adjudication in all these Letters Patent Appeals and as such the said appeals are heard together and are being disposed of by this common judgment. The admitted positions of fact which crystalises the common question are : (a) The writ petitions from which the present Letters Patent Appeals arise were filed before the learned Single Judge of this Court invoking jurisdiction only under Article 227 of the Constitution of India. (b) The learned Single Judge in exercise of jurisdiction under article 227 of the constitution of India has either allowed or dismissed the writ petitions. (c) The writ petitions preferred before the learned Single Judge invoked the powers of superintendence under Article 227 of the constitution of India simpliciter without any mention of Article 226 of the Constitution of india. No grievance of violation of fundamental rights was made and no writ or direction in the like nature was sought. (1a) In the above premises, the following common question emerges for adjudication. "whether Letters Patent Appeal filed under clause 15 of the Letters Patent of the bombay High Court is maintainable against the judgment rendered by a Single Judge of the High Court, in a Writ Petition invoking jurisdiction under Article 227 of the Constitution of India, before the division Bench ?"
(2.) CONSEQUENT upon preliminary objection, being raised on behalf of the respondent about maintainability of the Letters patent Appeals, the above question emerges for adjudication. The learned Advocates appearing for the respondents in support of the preliminary objection contended that under clause 15 of the Letters Patent of the Bombay high Court no appeal lies against a judgment delivered by the learned Single Judge in exercise of jurisdiction only under Article 227 of the Constitution of India, as an appeal is expressly barred by clause 15 of the Letters patent itself. Before we consider the objection raised on behalf of the respondents touching the maintainability of the appeals under Clause 15 of the Letters Patent, it would be appropriate to reproduce clause 15 of the Letters Patent, which reads thus :- "appeal 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 Bombay 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 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 the 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 Judges 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 judgment of Judges of the said High Court or of such Division Court shall be, Us to qur heirs or successors in Our or Their privy Council, as hereinafter provided. " (Emphasis supplied.)
(3.) THE learned Counsel for the respondent/objectors submits that the issue is concluded way back in the year 1981 when a special Bench comprising of five Judges of the Bombay High Court disapproved the view taken by the Full Bench in Shankar Naroba salunke and others Vs. Gyanchand lobhachand Kothari and others and overruled the Full Bench judgment. The Full bench in Shankar Naroba Salunke and others vs. Gyanchand Lobhachand Kothari and others recorded the following findings: (1) that the Constitution of India brought about fundamental change in the character of the high Courts which were in existence then (2)that the power exercised by the High Court is exercised finally whether by a Single Judge or by a Division Bench Courts. (3) Letters Patent appeal is not maintainable against a judgment delivered by Single Judge either invoking jurisdiction under Article 226 or under Article 227 of the Constitution of India. The Special bench recorded its conclusions in para No. 120 of the judgment reported in 1981 Mh. LJ. 93 in the case of State of Maharashtra Vs. Kusum wd/o. Charudutta and Ors. Justice madon who delivered the judgment for the special Bench, after dealing with the history of the Bombay High Court and its jurisdiction, has extensively dealt with the Letters Patent jurisdiction of the High Court. The conclusions No. 25, 29, 32, 33, 34 and 36 are relevant for the decision of the objection raised by the respondents touching the maintainability. Hence, we reproduce the same. "25. An appeal against the judgment of a single Judge in a proceeding under Article 227 of the Constilution is expressly barred by clause 15 of the Letters Patent. 29. Clause 15 of the Letters Patent does not exclude a right of appeal against the judgment of a Single Judge in a proceeding under Article 226 of the Constitution. 32. An appeal lies under clause 15 of the letters Patent against the judgment of a single Judge in a proceeding under Article 226 of the Constitution. 33. Where the facts justify a party in filing an application either under Article 226 or 227 of the Constitution and the party chooses to file his application under both these Articles, the Court ought to treat the application as being one made under Article 226. 34. If in deciding such an application made under Articles 226 and 227 of the constitution, the Court gives in the final order ancillary directions which pertain to article 227, this would not deprive the party of his right of appeal under clause 15 of the Letters Patent where the substantial part of the order sought to be appealed against is under Article 226. ";