This article is written by Garvit Singh.
LETTER PATENT APPEAL
Letter patent appeal (LPA) is an appeal by a petitioner against a decision of a single judge to another bench of the same court. It was a remedy provided when high courts were first created in India in 1865. This is an only remedy which is available in court to the petitioner against the decision of a single judge of a high court, otherwise, a remedy would lie with only in the supreme court.
Sometimes the decision of single judge would also go wrong due to wrong facts as well as by law. In this before going to Supreme Court, the petitioner has the option to move to another bench who’s having more than one judge.
So applying for letter patent appeal (LPA) petitioner will save the cost to moving in the Supreme Court. Letter patent appeal (LPA) is an intra-court appeal in high court and inter-court in Supreme Court and both have different rules regarding this LPA. Normally a judgment and order passed under Art 226 of the Constitution is appealable as LPA and judgment and order passed under Art 227 is not appealable under this category.
If we file an appeal before the high court against the order of high court itself, then it is called an intra-court appeal and time limit for appealing in intra court is maximum 30 days.
If we file an appeal before the supreme court against the order of the high court, then it is called inter-court appeal and time limit for appealing in inter-court is maximum 90 days.
CAN AN APPEAL CAN BE FILED AGAINST ANY JUDGMENT?
An appeal may be filed against any judgment, decree, or final order in a civil proceeding of a high court. If the case involves a substantial question of law which is important and in the opinions of the high court then the only high court will certify to file an appeal.
The party who makes an appeal can urge the sufficient question of law from the grounds and must prove that interpretation of the constitution has been wrongly decided.
For filing an appealing person must pay the court fees as per the schedule table or as per the rule book.
The petitioner should be accompanied by 1-3 of paperwork for filling an appeal i.e.
- Certified copy of judgment and decree appealed from.
- Certified copy of certificate granted by High Court.
- A certified copy of the order granting the said certificate.
In nowadays there is a requirement to ask a court for a certificate of appeal. You can file a letter patent appeal against the judgment of the court without the certificate.
Filling an appeal usually have 90 or 30 days maximum time in high court and Supreme Court But since the procedure of writs can be unique to each state, it is best to check the Letters Patent Rules of the concerned High Courts and Supreme Court.
WHAT ARE THE VARIOUS PROVISION OF LAW IN (LPA)?
Before we consider the ruling of the Supreme Court or various other high courts in relation to the letter patent appeal under the clause 15 of latter patent. It is important to know and must analyze the various provision of law which are involved.
The provision of article 226 of the Indian constitution is as follows.
Power of high court to issue certain writs- Article 226
In article 226 every High Court shall have power, to issue any person or authority for including appropriate cases, to the government, or for the enforcement of any of the rights conferred by Part III and for any other purpose.
The power which is delivered to this clause is to issue direction, order or writ to any government, authority or any person which exercised by the high court in relation to the cause of action either they are wholly or partly.
Power of superintendence over all courts by the High Court- Article 227
High court manages all other court and tribunals in relation to its exercises. Without prejudice to the generality of the foregoing provisions, the High Court may Call for returns from such courts Make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts and Prescribe forms in which books, entries, and accounts shall be kept by the officers of any such courts.
LETTER PATENT APPEAL IN THE HIGH COURT
- Letter patent appeal can be filed in the high court and only in such high courts that have been established by the letter patent.
- Division bench can file a letter patent appeal to Supreme Court. It means it will also include full bench of 5 judges, 7 judges and also the Supreme Court.
- Letter patent appeal is the only court established by a letter patent in other court established under the constitution and it is called the second appeal. Writs are also established by the Indian constitution and it can be raised only if the opposite party accepts a writ of the habeas corpus. Writ jurisdiction lies only in the high court and Supreme Court and there is no advantages and disadvantages in the letter patent appeal.
LETTER PATENT APPEAL IS NOT MAINTAINABLE IN THE ARBITRATION ACT
- The three judge’s bench of the Bombay high court holds that letter patent appeal is not maintainable from an order passed under section 8 of the arbitration.
- Only section 37 of the arbitration act applies to such appeal.
- An order passed under section 8 is one under part one of the arbitration act.
- Provisions and judgments rendered under the Arbitration Act of 1940 can be relied upon while interpreting the provisions of the Arbitration Act of 1996.
The three-judge bench of the Bombay high court in recently case Conroe Steels Private Limited (“Conroe”) v. Lu Qin (Hong Kong) Company Limited (“Lu Qin”) has resolved the question related to the appealability from an order passed under section 8 of the arbitration and conciliation act and Clause 15 0f the letter patent.
It has been observed that an application under Section 8 of the Act is an application under part I of the Act and hence the bar under Section 37 of the Act would apply to an appeal from an order passed under Section 8 of the Act. It has been held that a Letters Patent appeal is not maintainable from an order passed under Section 8 of the Act.
INTRA-COURT APPEAL IS NOT MAINTAINABLE IN CRIMINAL MATTERS
On Tuesday, Supreme Court of India in one case held that appeal to the division bench of the high court is not maintainable in any order or judgment passed by a single bench judge in the criminal matter. Whether that order has been passed by under article 226 of the Indian constitution or under section 482 of criminal procedure code.
Justice like Dipak Mishra, Justice A.M.Khanwiker and Justice Mohan M. Shantanagoder said that the high court of Gujarat and Delhi had correctly laid down the laws regarding the maintainable but the view on this is given by the Andhra Pradesh bench of the high court was totally incorrect.
Court referring to clause 10 of the letter patent and observed that it is manifest that no appeals lie against the order passed by the single judge in the exercise of criminal jurisdiction.
Ambalal manibhai patel v/s state of Gujrat
The petition had filed in the Gujarat high court a writ petition under article 226 of the Indian constitution to challenging the validity of the notification which is issued by the Gujarat government in the exercise of power under section 15(1) of the mines and minerals (regulation and development) act.
The appellant’s writ petition was dismissed by a single judge of the high court. Thereupon, the appellant filed a letter patent appeal against the said order of dismissal. While the letter patent appeal was pending, the government of Gujarat issued a notification and where it made the Gujarat miner minerals (amendment) rules, which reduces the rate of royalty in respect of all minor minerals to uniform rate.
Several writ petitions was filed in the high court challenging the validity of the said notification. The appellant letter patent appeal like also as those writ petitions which were heard and disposed of by the common judgment reported as sonabhai pethaji v/s state of Gujrat case.
SHAH BABULAL KHIMJI V/S JAYABEN D. KANIA AND OTHERS
The appeal is a special leave which is which directed against an order of the division bench of the bombay high court. This appeal is filed by the appellant against the order of the trial judge and it was dismissed on the ground that appeal was not maintainable as the order impugned was not judgment within the meaning of clause 15 of the letter patent
Court dismissed the letter patent appeal because appellant not filed the latter patent appeal on time. Court usually dismissed the delayed appeal.
High court and Supreme Court both give the option to the appellant in letter patent appeal. If one cannot satisfy with the order of courts then he/she will apply for this appeal. Basically, some high court’s opinion are against the letter patent appeal. Various laws provision has been given by the Indian constitution to deal with letter patent appeal. Maintainability of letter patent appeal is not given by high courts in many laws.