RESIDENTS OF APNA VIHAR vs KEWAL KRISHAN SAINI AND ORS

Through the medium of this application, the petitioner is seeking leave of this Court to prefer Letter Patent Appeal against the order dated

21.11.2017 passed by the Single Bench of this Court in OWP No. 1859/2017 titled Kewal Krishan Saini Vs. State of J&K and ors.Â

Vide order dated 11.10.2017, passed by Additional District Magistrate, Jammu purportedly under Section 133 Cr. PC, the respondent No. 1 was

directed to remove the Mobile Tower from his premises, i.e., House No. 33 Apna Vihar, Talab Kunjwani, Jammu and submit the compliance report

before him within weeks’ time. It was also indicated in the aforesaid order that if the needful was not done by the respondent No. 1, the office of

Additional District Magistrate, Jammu would be left with no option but to demolish the unauthorized Mobile Tower under relevant provisions of law.

Aggrieved, the respondent No. 1 challenged the said order of Additional District Magistrate, Jammu in OWP No. 1859/2017. In the writ petition, the

respondent No. 1 arrayed State and the Additional District Magistrate, Jammu as party respondents. It appears that the applicant herein who claims to

be authorized representative of the residents of Apna Vihar and was complainant before the Additional District Magistrate, Jammu had filed the

Caveat petition anticipating the writ petition by the respondent No. 1. It further transpires that on the date, the writ petition came up for consideration

before the Single Bench, the registry had not placed the Caveat petition filed by the applicant herein along with the writ petition. Accordingly, the

learned Single Judge after hearing the counsel for the respondent No. 1 and the State Counsel, Mr. Ehsan Mirza, Dy. A.G, passed the interim order

directing the maintenance of Status Quo as it existed on the said date. This order was passed by learned Single Judge on 21.11.2017 and was to

remain in force till next date of hearing. The applicant herein instead of seeking intervention in the writ petition and contesting the writ petition as also

the grant of interim relief on merits, chose to challenge the interim order by way of an appeal before this Court. Since the applicant was not a party

in the writ petition, therefore, the instant application for leave.Â

We have heard learned counsel for the parties and perused the record.Â

Learned counsel for the respondent No. 1 has taken a preliminary objection to the maintainability of this appeal. He submits that the appeal under

Clause 12 of the Letters Patent would not be maintainable against an interim order which is yet to be finalized and that the order sought to be assailed

in the appeal has been passed by the Single Bench in the exercise of its criminal jurisdiction and, therefore, no appeal against an order passed by the

Single Bench in criminal jurisdiction is available under Clause 12 of the Letters Patent. Although given the nature of order impugned in this petition, we

could have avoided the decision on the maintainability of this appeal, yet in view of the learned counsel appearing for the parties vehemently arguing

on the maintainability of the appeal proposed to be filed by the applicant, we considered the issue. Undoubtedly, the order impugned in the writ petition

has been passed by the District Magistrate/ADM, Jammu, under Section 133 of the Code of Criminal Procedure and, therefore, cannot be said to be

civil proceedings by an stretch of reasoning. Needless to say that the High Court in the exercise of its jurisdiction under Article 226 of the Constitution

of India read with Section 103 of the Constitution of J&K exercises both “civil jurisdiction as well as the criminal jurisdictionâ€. Whether a

particular order has been passed in the exercise of “civil jurisdiction†or “criminal jurisdiction†would depend upon the nature of proceedings

filed before it. The order impugned in the writ petition has been passed by the Additional District Magistrate, Jammu under the provisions of Criminal

Procedure Code, which does not decide any civil rights of the parties and, therefore, the proceedings which are pending before the Single Bench from

where the order sought to be challenged in appeal has arisen, are the criminal proceedings. That being so, the order sought to be assailed in the appeal

by leave is nothing but an order passed in the exercise of “criminal jurisdictionâ€​.Â

The view which we have taken is also fortified by the judgment of the Supreme Court rendered in S.A.L Narayan Row Vs. Iswarlal Bhagwandas;

AIR 1965 SC 1818. The Supreme Court in para 8 of the aforesaid judgment held thus:-

“……The expression “civil proceedings†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. 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 danger to the maintenance of peace and order, or orders aimed at preventing

vagrancy are contemplated to be passed…â€​

Similar matter also fell for consideration before the Full Bench of Orissa High Court in the case of Kasinath Nayak Vs. State of Odisha and ors.;

AIR 2016 (Orissa) 77. The Full Bench of Orissa High Court after discussing the whole case law on the subject in paragraph 12 observed as under:-

“From the above analysis of the decisions of the apex Court and other High Courts, this Court arrives at the conclusion that the question, whether

an order passed by learned Single Judge in a writ petition under Article 226 of the Constitution of India is a proceeding under civil jurisdiction or

criminal jurisdiction, can be determined by taking into consideration the nature of proceeding. That means, if the relief asked for in a writ petition is

against exercise of power under criminal law or the proceeding would be a criminal proceeding, or the proceeding if carried to its conclusion ultimately

may result in sentence of death or imprisonment or fine or forfeiture of property, such writ petition should be treated as filed against a proceeding

under criminal jurisdiction. In such a case, the Letters Patent Appeal/Writ Appeal is not maintainable.â€​

Whether appeal against the order of Single Bench passed in the exercise of criminal jurisdiction is barred under Letters Patent of this Court is a

moot question for consideration. Clause 12 of the Letters Patent of this Court which provides for intra-court appeal is reproduced hereunder:-

“12. And we do further ordain that an appeal shall lie to the said High Court of judicature 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 and 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) of any judge of the said High Court or one judge of any Division Court and that notwithstanding anything

herein before 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, a consistently with the provisions of the civil procedure code, made 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 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 the judges of the said High Court or of such division court shall be to us, our Heirs or Successors and be heard by

our Board of Judicial Advisers for report to us.â€​

A careful perusal of Clause 12 of the Letters Patent reproduced hereinabove would indicate that what is specifically excluded from the purview of

the Clause 12 or the orders made in the exercise of jurisdiction, order of sentence or order passed and made in the exercise of power of

Superintendence. The orders passed by the Single Bench in the exercise of criminal jurisdiction have not been excluded. Whereas, in Clause 10 of the

Letters Patent of the High Court of Judicature at Patna, the orders passed by the Single Bench in the appeal against the order passed in the exercise

of criminal jurisdiction has been specifically barred. Similar appears to be the position with regard to Clause 15 of the Letters Patent of the High Court

of Judicature at Gujarat. The judgments relied upon by the learned counsel for the petitioner discussed hereinabove, therefore, are based on the

interpretation of Clause 10 of the Letters Patent of the High Court of Judicature at Patna and Clause 15 of the High Court of Judicature at Gujarat,

which provisions are not in pari-materia of Clause 12 of the Letters Patent of this Court. That being the position, the reliance on the judgment relied

upon by the respondents is misplaced. We, however, keep this question open to be decided in the appropriate case.Â

That apart, we also find that order impugned being interim in nature and having decided no rights between the parties, cannot be made amenable to

challenge under Clause 12 of the Letters Patent.Â

Learned counsel for the applicant vehemently submitted that the order impugned though passed at interlocutory stage has all the trappings of the

final order and, therefore, appealable. We are not impressed by the submissions made. We, however, find substance in the submissions made by

counsel for the applicant. that once the applicant had filed a Caveat petition against the order, subject matter of challenge in the writ petition, registry

ought to have placed the same alongside the writ petition. We also notice that the order impugned in the writ petition was passed by the District

Magistrate concerned on the complaint of the applicant and, therefore, the applicant was a necessary party. We have also no doubt that the

respondent No. 1 did not array the applicant as party respondents deliberately, most certainly, to avoid opposition from the applicant on the motion

hearing stage.Â

Be that as it may, we hold the applicant a necessary party to the writ petition. Consequently, the applicant is impleaded as party respondent No. 3

in the writ petition. Having held so, we leave it to the applicant to move appropriate motion before the Single Bench for early consideration of the

matter after filing its objections.Â

Needless to say that in case the applicant files his objections and moves a motion for vacation of the interim order impugned in this appeal, the

learned Single Judge would consider the same at the earliest. Â

The appeal is accordingly disposed of.