Joginder Singh and ors. Vs. the State and ors. - Court Judgment

Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the definition of judgment in section 2(9) of c.p.c., is much wider and more liberal, intermediary or interlocutory judgment fall in the category of orders referred to clause (a) to (w) of order 43, rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. amended section 100-a of the code clearly stipulates that 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. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - 3 did not obtain the advice of the village committee constituted under rule 4 of the east punjab holdings (consolidation and prevention of fragmentation) rules, 1949, although it was incumbent upon him to do so before finalization of the scheme, as provided in section 14 of the east punjab holdings (consolidation and prevention of fragmentation) rules, 1948. 2. the petition must fail for the simple reason that the ground on which the scheme is now challenged was never put forward by the petitioner in the form of objections which they had the right to prefer either under the provisions of section 19 of the act to respondent no.order1. the sole ground on which the scheme of consolidation of holdings prepared for village kalianwali in tehsil sirsa, district hissar, is challenged in this petition under articles 226 and 227 of the constitution of india is that the concerned consolidation officer, who figures as respondent no. 3 did not obtain the advice of the village committee constituted under rule 4 of the east punjab holdings (consolidation and prevention of fragmentation) rules, 1949, although it was incumbent upon him to do so before finalization of the scheme, as provided in section 14 of the east punjab holdings (consolidation and prevention of fragmentation) rules, 1948. 2. the petition must fail for the simple reason that the ground on which the scheme is now challenged was never put forward by the petitioner in the form of objections which they had the right to prefer either under the provisions of section 19 of the act to respondent no. 3 or under those of section 21 (3) thereof to the settlement officer (respondent no. 2). not having availed of the remedies provided to them under the act itself, they cannot be held entitled to invoke the writ jurisdiction of this court. 3. the petition is accordingly dismissed with costs. 4. petition dismissed.

Judgment:
ORDER

1. The sole ground on which the scheme of consolidation of holdings prepared for village Kalianwali in Tehsil Sirsa, District Hissar, is challenged in this petition under Articles 226 and 227 of the Constitution of India is that the concerned Consolidation Officer, who figures as respondent No. 3 did not obtain the advice of the village Committee constituted under Rule 4 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Rules, 1949, although it was incumbent upon him to do so before finalization of the scheme, as provided in Section 14 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Rules, 1948.

2. The petition must fail for the simple reason that the ground on which the scheme is now challenged was never put forward by the petitioner in the form of objections which they had the right to prefer either under the provisions of Section 19 of the Act to respondent No. 3 or under those of Section 21 (3) thereof to the Settlement Officer (respondent No. 2). Not having availed of the remedies provided to them under the Act itself, they cannot be held entitled to invoke the writ jurisdiction of this Court.

3. The petition is accordingly dismissed with costs.

4. Petition dismissed.