The Supreme Court of India in Sh Jogendrasinhji Vijaysinghji Vs. State of Gujarat dated July 6, 2015 considered three basic compartments of questions regarding the maintainability of the Letters Patent Appeal namely:
(i) In what context the phrase ‘original jurisdiction’ appearing in Clause 15 of the Letters Patents should be construed, that is, by taking into consideration the plain meaning of the same as the Court’s power to hear and decide the matter before any other court and review the same; or should it be construed in the context with the power of the Court to issue a writ under Article 226 of the Constitution of India, which is always original.
(ii) Assuming the words “to issue to any person or authority” as contained in Article 226 of the Constitution are interpreted so as to include the tribunal or the Court, then in such circumstances, would it be the correct proposition of law to say that appellate tribunal is not amenable to a writ of certiorari and the only remedy available to the litigant to challenge the order passed by an appellate tribunal is under Article 227 of the Constitution and, ancillary one, when a petition assails an order of the tribunal, be it a tribunal of first instance or an appellate tribunal, should it be necessarily treated as a petition under Article 226 of the Constitution of India in every case or it would depend upon facts of each case,more particularly the grounds of challenge and the nature of order passed.
(iii) Whether in a petition for issue of a writ of Certiorari under Article 227 of the Constitution of India, the tribunal/Court whose order is impugned in a petition must be a party to the petition so that the writ sought from the Court can be issued against the tribunal/Court, but if the petition is for the relief under Article 227 only, then the tribunal/Court whose order is under assail need not be a party-respondent on the reasoning that by entertaining a petition under Article 227 of the Constitution, the High Court exercises its power of superintendence which is analogous to the revisional jurisdiction.
A bench comprised of Justice Dipak Misra and Adarsh Kumar Goel summarises their conclusions on the above questions of law as follows:-
(A) Whether a letters patent appeal would lie against the order passed by the learned Single Judge that has travelled to him from the other tribunals or authorities, would depend upon many a facet. The Court fee payable on a petition to make it under Article 226 or Article 227 or both, would depend upon the rules framed by the High Court.
(B) The order passed by the civil court is only amenable to be scrutinized by the High Court in exercise of jurisdiction under Article 227 of the Constitution of India which is different from Article 226 of the Constitution and as per the pronouncement in Radhey Shyam & Anr. v. Chhabi Nath & Ors., 2015 (3) SCALE 88, no writ can be issued against the order passed by the civil court and, therefore, no letters patent appeal would be maintainable.
(C) The writ petition can be held to be not maintainable if a tribunal or authority that is required to defend the impugned order has not been arrayed as a party, as it is a necessary party.
(D) Tribunal being or not being party in a writ petition is not determinative of the maintainability of a letters patent appeal.
# Letters Patent Appeal
Letters Patent Appeal is an appeal to a Division Bench filed against the order passed by a Single Judge of the High Court. It is filed under Clause X of the Letters Patent. Limitation provided for filing such appeal is thirty days. Such appeal lies only against order passed in Civil Writ petitions. It was a remedy provided when high courts were first created in India by Letters Patent in 1865. It is the only remedy available against the decision of a single judge of the high court, otherwise the remedy would lie with the Supreme Court.
The right of appeal against the judgment of a Single Judge is given by the Letters Patent which have been continued in force by Article 225 of the Constitution. If under the Rules of the High Court, a matter is heard and disposed of by a Single Judge, an appeal lies against his judgment unless it is barred either under the Letters Patent or some other enactment.
The 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 is to be borne in mind how the jurisdiction under the letters patent appeal is to be exercised cannot exhaustively be stated. It will depend upon the Bench adjudicating the lis how it understands and appreciates the order passed by the learned Single Judge. There cannot be a straight-jacket formula for the same. Needless to say, the High Court while exercising jurisdiction under Article 227 of the Constitution has to be guided by the parameters laid down by this Court”, the judgment said.