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Courts, Tribunals and Judiciary — High Courts — Letters Patent Appeal — When maintainable


When the order of Single Judge of High Court is not in exercise of ordinary original jurisdiction, but in exercise of writ jurisdiction, the principal question to be decided is whether the order of Single Judge is in substance one under Art. 226 of Constitution and not under Art. 227 of Constitution. If order of Single Judge is in substance one under Art. 226 of Constitution, regardless of nomenclature used by parties in the writ petition or by Single Judge in his order, then LPA to Division Bench is maintainable. What is important is to ascertain the true nature of order passed by the Single Judge. If order of Single Judge in substance is not under Art. 226, or cannot be one under Art. 226, but is one under Art. 227 of Constitution, again regardless of nomenclature, LPA to Division Bench is not maintainable. When order of Single Judge is under both Art. 226 and Art. 227 of Constitution, again regardless of nomenclature, LPA to Division Bench is maintainable. LPA not maintainable in writ petitions against judicial orders of civil court. LPA not maintainable in such cases, as Single Judge’s order in such cases can only be under Art. 227 of Constitution. Judicial order of civil court is only assailable under Art. 227 and is not amenable to writ jurisdiction under Art. 226 of the Constitution. Thus, LPA maintainable in writ petitions against orders of tribunals/authorities (other than civil courts) when Single Judge’s order is in substance under Art. 226. LPA is maintainable in such cases so long as Single Judge’s order in substance falls under Art. 226, either wholly or partially. Division Bench to which LPA is made, is required to ascertain whether facts justify assertions made in writ petition to invoke jurisdiction under Art. 227 or Art. 226 or under both/whether Single Judge exercised jurisdiction under Art. 227 or Art. 226 or under both having regard to nature, contour and character of his order. [Jogendrasinhji Vijaysinghji v. State of Gujarat, (2015) 9 SCC 1]
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