Ajoy Nath Ray and Ashok Bhushan, JJ.
1. This is an special appeal from a four line interim order, dated the 14th of February, 2006, whereby the directions for affidavits were given but the interim order, which was subsisting in aid of the writ petition until then was not extended.
2. The appellant come up before us saying that grant of interim order of a substantial nature makes a judgment of an Hon'ble Single judge appealable as much as the withholding of such an interim order by an Hon'ble Single Judge.
3. However, another point of appealability is also taken by Mr. Shashi Nandan on behalf of his client, whom we shall call the later bidders.
4. The facts are basically these. A large piece of trust properties was allegedly agreed to be sold by the trustees of a certain trust in Kanpur to the clients of Mr. Ravi Kant, whom we shall call the first offerors. According to them the property was agreed to be sold to them for Rs. 1.61 crore and a banker's cheque of Rs. 85 lac was paid and encashed. The trustees said that they did not receive Rs. 85 lac but only Rs. 50 lac, i.e., half a crore.
5. Pursuant to the said agreement entered into sometime in or about the year 2001, in the month of May, the property was not conveyed.
6. An application was made in August that year by the trustees under the U.P. Hindu Public Religious Institution Act, 1962.
7. The purport of the application was for sanction of sale to the first offerors.
8. Unfortunately when the application was made the U.P. Act had been repealed.
9. Sometime in the year of 2003, an amendment application was made by the Trusties to the District Court seeking to convert the application as one under Section 7 of the Charitable and Religious Trust Act, 1920.
10. Soon after the amendment application was made, according to Mr, Ravi Kant the very day after it was made, the learned District Judge in question passed an order directing the property to be sold to a bidder offering not less than Rs. 1.7 crore.
11. The first offerors made a writ application alleging that the order of the District Judge was passed in their absence and they did not have any adequate notice of the later development. The trustees submit that a recall application was moved before the District Judge by the first offerors but they withdrew it and filed the present writ petition in the High Court.
12. The passing of the interim order and non continuance of the interim order are both events in that writ application.
13. Mr. Shashi Nandan's clients submit that they are prepared to pay Rs. 1.8 crore and the property being trust property it should be conveyed to the persons offering higher amount.
14. The trustees are of the J&K.; Group. The trust is also made by the ancestors of the J & K Group. One of the points raised by the first offerors is that the trust is not a public trust at all, or a charitable or religious one in reality, and as such the Charitable and Religious Trust Act, 1920 has no application.
15. The litigation fought out before us appeared to have very much the smell of private litigation where the first offerors intend to buy the property for the agreed price and the later bidders seek to out-bid them and obtain the property themselves on the basis of later events.
16. A preliminary point of appealability arose and that is the first hurdle which the appellants have to cross. We say nothing as to whether we would have passed an interim order during the pendency of the writ application if the appellant had crossed that hurdle before us. The matter is reserved for a reasoned decision by the Hon'ble Single Judge as and when parties render full assistance to his Lordship and arguments are concluded or compelled to be concluded before the first Hon'ble Court.
17. The Allahabad High Court Rule, which is in question, is Chapter VIII Rule 5. Chapter VIII Rule 5 of the Allahabad High Court Rules reads as follows:
5. Special appeal.- - An appeal shall lie to the Court from a judgment (not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made by a Court subject to the superintendence of the Court and not being an order made in the exercise of revisional jurisdiction or in the exercise of its power of superintendence or in the exercise of criminal jurisdiction or in the exercise of jurisdiction conferred by Article 226 or Article 227 of the Constitution in respect of any judgment, order or award- - (a) of a tribunal, Court, or statutory arbitrator made or purported to be made in the exercise or purported exercise of jurisdiction under any Uttar Pradesh Act or under any Central Act, with respect to any of the matters enumerated in the State List or the Concurrent List in the Seventh Schedule to the Constitution or (b) of the Government or any Officer or authority, made or purported to be made in the exercise or purported exercise of appellate or revisional jurisdiction under any such Act) of one Judge.
18. The above will read like a big jumble of words. The provisions regarding internal appeals to the High Court are usually like this, a big jumble of words. One might refer to Clause-15 of the Letters Patent of 1865 setting up the High Court of Judicature at Fort William in Bengal, now the Calcutta High Court. That is just a similar jumble of words like this.
19. The purport of the above Chapter VIII Rule 5 provision is best understood as an appeal being allowed within the High Court from every judgment of a Single Judge to a Division Bench, excepting in the several cases mentioned in the Rule as exceptions,
20. We also set out below the paragraph-64 from the judgment of the Division Bench given in the case of Vajara Yojna Seed Farm, Kalyanpur and Ors. v. Presiding Officer, Labour Court II, U.P., Kanpur and Ors. reported at (2003)1 UPLBEC 496, with just a little modification. The modification is not separately shown but is included in the quotation itself.
64. From the above discussions and looking into the provisions of U.P. Act No. 14 of 1962 as amended by Amendment Act of 1981 and Chapter VIII, Rule 5 of the Rules of the Court, 1952, special appeal is excluded from a judgment of one Judge of this Court in following categories:
(i) Judgment of one Judge passed in the exercise of appellate jurisdiction in respect of a decree or order made by a Court subject to the Superintendence of the Court.
(ii) Judgment of one Judge in the exercise of revisional jurisdiction.
(iii) Judgment of one Judge made in the exercise of its power of Superintendence.
(iv)Judgment of one Judge made in exercise of criminal jurisdiction.
(v) Judgment (which includes order) of one Judge made in the exercise of jurisdiction conferred by Article 226 or Article 227 of the Constitution in respect of any judgment, order or award of a Tribunal, Court or Statutory Arbitrator made or purported to be made in the exercise or purported exercise of jurisdiction under any Uttar Pradesh Act or under any Central Act, with respect to any of the matters enumerated in State List or Concurrent List.
(vi) Judgement (which includes order) of one Judge made in exercise of jurisdiction conferred by Article 226 or Article 227 of the Constitution in respect of any judgment, order or award by the Government or any officer or authority made or purported to be made in the exercise or purported exercise of appellate or revisional jurisdiction under any Uttar Pradesh Act or under any Central Act, with respect to any of the matters enumerated in the State List or the Concurrent List in the Seventh Schedule to the Constitution.
21. The argument against the appealability of the present order was that the judgment under Article 226 of the Hon'ble Single Judge here was in respect of a judgment, order or award of a Court made under the Charitable and Religious Trust Act, 1920, which, today would have to be treated as being under the Concurrent List Entry 10.
22. That Entry reads as follows:
10. Trust and Trustees.
23. This argument on behalf of later bidders, who did not want any interim order in their way now, is apparently unanswerable but Mr. Ravi Kant sought to find a way round it.
24. His argument was that the Court of the District Judge exercising jurisdiction under Section 7 of the said 1920 Act is not a Court within the meaning of Chapter VIII Rule 5, nor is the order passed under Section 7 of the 1920 Act a judgment, order or award within the meaning of the said Chapter VIII Rule 5.
25. In Chapter VIII Rule 5, the word judgment occurring in the beginning and in the phrase 'a judgment' means a judgment of an Hon'ble Single Judge of the High Court, which decides something of substance and is of some definite and sizeable consequence to the parties involved. But for the reasons we have give below, the same word judgment occurring in the phrase 'any judgment' regarding exclusion of matters is quite different. Although ordinarily the same word means the same thing in the same statutory provision or rule, this canon of construction is not an inflexible one. Sometimes the context might require different meanings being given to the same word, which are even in close proximity to each other in the same Rule. This is one such instance, where in the exclusionary part, the word judgment in the phrase 'any judgment' means a judgment whether of consequence or not, whether of substantial importance or not, but in the beginning, in the phrase 'a judgment', it means are of sabstance.
26. Mr. Ravi Kant's first argument was that the Court of the District Judge is a persona designata under the 1920 Act (not a indicium designatum, a specified and court, which is the same thing) and as such it is not a Court.
27. Section 2 of the said 1920 Act is quoted below:
2. Interpretation.- In this Act, unless there is anything repugnant in the subject or context, 'the court' means the court of the district Judge (or any other court empowered in that behalf by the [State Government]] and includes the High Court in the exercise of its ordinary original civil jurisdiction.
28. It is quite clear that this argument is not sound. The designation is not of the District Judge but of the Court of the District Judge or any other Court. As such the Court itself is assuming jurisdiction under the 1920 Act. The exclusion in Chapter VIII Rule 5 clearly shows that when the Court exercises jurisdiction under a Central Act in regard to Concurrent List matters, the Article 226 orders passed by as Hon'ble Single Judge in respect thereof become unappealable.
29. The reference of Mr. Ravi Kant in this regard to the case of Hanskumar Kishan Chand v. the Union of India reported at : [1959]1SCR1177 is not really opposite. The issue there was whether a judgment upon award, which is really the technical name for an arbitration decree, which used to be passed under the old Arbitration Act, 1940, was itself subject to appeal.
30. As is well known the Arbitrator's Code is a specialised Code in the body of Indian law. Before 1996, and even now to a large extent thereafter the Code is basically this.
31. Parties are entitled to choose their arbitrator and the exclusion of the Court's jurisdiction made by such contract or agreement of arbitration is not contrary to the provisions of the Indian Contract Act and arbitration agreements are valid. Once the chosen arbitrator or the arbitrator appointed by the Court passes an award that will, after usual notice to the other side, become a decree of the Court (now the award is enforceable as such) and such decree passed by the Court on the award used to be called judgment upon award. It would thereafter be executible like a decree of the same Court passed, say, on a money suit.
32. The way to challenge the award would be to challenge the award itself and not challenge the decree after the award has ripened into a judgment. There were and are specified and limited grounds for challenging an award or having its scope, effect and validity determined. The parties would have to have recourse to these provisions and a judgment setting aside or refusing to set aside an award was appealable. But the judgment upon award once passed, whether before or after or with or without the disposal of a setting aside application was not itself appealable as a decree. The simple reason for this was that the Court at the time of passing of a judgment upon award did not apply its mind but merely stamped the award as enforceable, it having earlier dismissed any application for setting aside the award or it having earlier not being approached at all with any application challenging the award. (Let us have interest an money awards out of this now.)
33. The Court passing a judgment upon award might be passing a decree, but it is not itself appealable under the Letters Patent, because it is a specially designated Court for having an award enforced but this principle cannot be applied here where the field is totally different.
34. The jurisdiction of the Court of the District Judge under the 1920 Act is guided by Section 7, which is set-out below:
7. Power of trustee to apply for directions.-(1) Save as hereinafter provided in this Act, any trustee of an express or constructive trust created or existing for public purpose of a charitable or religious nature may apply by petition to the court within the local limits of whose jurisdiction any substantial part of the subject- matter of the trust is situate, for the opinion, advice or direction of the court on any question affecting the management or administration of the trust property, and the court shall give its opinion, advice or direction, as the case may be, thereon:
Provided that the court shall not be bound to give such opinion, advice or direction on any question which it considers to be a question not proper for summary disposal.
(2) The court on a petition under Sub-section (1), may either give its opinion, advice or direction thereon forthwith, or fix a date for the hearing of the petition, and may direct a copy thereof, together with notice of the date so fixed, to be served on such of the persons interested in the trust, or to be published for information in such manner, as it thinks fit.
(3) On any date fixed under Sub-section (2) or one any subsequent date to which the hearing may be adjourned, the Court, before giving any opinion, advice or direction, shall afford a reasonable opportunity of being heard to all persons appearing in connection with the petition.
(4) A trustee stating in good faith the facts of any matter relating to the trust in a petition under Sub-section (1), and acting upon the opinion, advice or direction of the Court given thereon, shall be deemed, as far as his own responsibility is concerned, to have discharged his duty as such trustee in the matter in respect of which the petition was made.
35. Mr. Ravi Kant argued that even if the District Court is a Court, the opinion passed under Section 7 is merely of an advisory or consultative nature and it cannot be called a judgment, order or award, which must necessarily affect the rights of parties.
36. There are clear binding authorities of Division Benches of the Allahabad High Court itself against this argument and we need do no more than refer to the cases of Allahabad, being the case of Mohammad Abdul Wahid Khan v. Radha Kishun and Anr. and the case of Ahmad Ullah Khan and Anr. v. Ahsan All Khan respectively reported at : AIR1929All581 and : AIR1935All147 , It is held in both the cases that although the order of the District Court passed under Section 7 is not appealable, yet the order is subject to civil revision.
37. Simply on the basis of these authorities we would be compelled to opine that the order in respect of which the writ application was filed, was both passed by a Court and it was an order of that Court.
38. That the said order is not appealable, is not because of the action of the District Judge not being that of passing an order at all, but because appeals are barred under Section 12 of the 1920 Act, which is set out below:
12. Barring of appeals.- No appeal shall lie from any order passed or against any opinion, advice or direction given under this Act.
39. The last sand of Mr. Ravi Kant's arguments was a Kerala Division Bench decision given in the case of Avoch Thevar v. Chummar reported at : AIR1957Ker171 , which was delivered for the Court by Hon'ble Mr. Justice Varadaraja lyengar. With the greatest of respect, it is a beautiful learned judgment which should be read by any reader of this judgment and we do not set out the materials collected therein simply because we cannot do it better or in a briefer way. We respectfully refer the reader to paragraphs 6, 7, 8 and 9 of the said judgment.
40. Following the said judgment and the authorities quoted there, which are fully persuasive in our respectful opinion, we must opine that a decision under Section 7 of the 1920 Act is not to be given at all by the District Court in matters which are seriously disputed or contested or which require difficult decisions on questions of fact or law. Mr. Ravi Kant's argument has that on this basis, whatever the District Judge has done, he must done as doing a thing of a comparatively minor nature, thus not affecting the rights of the parties, and therefore, the order, not being a judgment, order or award at all within the meaning of Chapter VIII Rule 5, cannot be encluded. The argument is not sound. It might be a minor order but an order it nonetheless is. If we excluded writ applications in regard to minor orders of Courts from the exclusionary portions of Chapter VIII Rule 5, then we would be laying down something very illogical; writ applications from minor or comparatively insignificant judgments would yield appealable order in the first Court but writ applications from significant and right affecting orders passed by the Court would yield unappealable orders in the first Court. This simply cannot be. The exclusion applies to 'any judgment, order or award' and the word any means any- the less significant the order the more unappealable is the order of the single Judge deciding the writ matter. The less importance the judgment in respect of which the first Court has pronounced in the writ, the less appealable is that pronouncement by the first writ Court. Any judgment means what it says, i.e. any and every judgment.
41. From Mr. Ravi Kant's argument it did not at all appear that the order of the District Judge is of no significance to his client. It appears to be of quite some significance. Under Section 7 Sub-section (4) of 1920 Act trustees acting bona fide on the order of the District Judge would render themselves immune to any action by anybody for all times in future. This certainly is a protection of the trustees who are also one of the three contesting parties appearing before us represented by Mr. R.P. Tiwari.
42. From what we gathered at present there seems to be no conflict of interest between Mr. Tiwari's client and Mr. Shashi Nand's clients, who are the later bidders, but we make no final pronouncement in that regard leaving it to be decided by first Court quite unaffected by what we say here.
43. As such the point of unappealability certainly succeeds. The orders and observations made by us , however worded, will not in any manner affect the jurisdiction of the first Court while deciding either the interim application for stay by a reasoned order as and when parties render the Court full assistance and even more so when the writ itself is disposed of.
44. We take note that according to the trustees the property can be sold only after issuance of advertisement even according to the impugned order of the District Judge dated 24.11.2003/11.12.2003 (be the date a little here or there; advertisement has to be issued before the property is finally sold and these advertisements have not yet been issued by the trustees. This submission made on behalf of the trustees to us was corrected after we related this in our order, and the clarification was that advertisements have in fact been issued pursuant to the order of District Judge dated 26.12.2003 and it is pursuant to such advertisement that the later bidders made their offer of Rs. 1.8 crore in or about January 2004, and that according to allegations of the trustees the later bidders deposited 50% of the said amount, i.e. Rs. 90 lac at the same line. The moneys takes are quite high and the battle also seems to be sufficiently bitter. Parties will be at liberty to approach the first Court for hearing.
45. The appeal is dismissed on the point of unmaintainbility only.