DINKAR KUMAR AND ORS vs UNION OF INDIA & ORS

2024-03-19 Information

$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 2844/2014
DINKAR KUMAR AND ORS ….. Petitioners
Through: Mr. Praveen Agarwal, Mr. R.R. Srish, Mr. Awanish Kr., Mr. Sanjay K. Singh and Mr. Sanjay K. Jha, Advocates
versus
UNION OF INDIA & ORS ….. Respondents
Through: Mr. Vikram Jetly, CGSC with Ms. Shreya Jetly, Advocate.

Reserved on: 12th February, 2024
% Date of Decision: 19th March, 2024

CORAM:
HON’BLE THE ACTING CHIEF JUSTICE
HON’BLE MS. JUSTICE MANMEET PRITAM SINGH ARORA
J U D G M E N T

MANMEET PRITAM SINGH ARORA, J:
1. The present petition filed under Article 226 of the Constitution of India, by three Advocates as a Public Interest Litigation (PIL), impugns the vires of the following provisions: –
(1) Section 23 of the Consumer Protection Act, 1986;
(2) Section 38 of the Advocates Act, 1961;
(3) Section 18 of the Telecom Regulatory Authority of India Act, 1997;
(4) Section 15Z of the Securities and Exchange Board of India Act, 1992;
(5) Section 55 of the Monopolies and Restrictive Trade Practices Act, 1969;
(6) Section 53T of the Competition Act, 2002;
(7) Section 30 and 31 of the Armed Forces Tribunal Act, 2007;
(8) Section 22 of the National Green Tribunals Act, 2010;
(9) Section 125 of the Electricity Act, 2003; and,
(10) Section 423 of the Companies Act, 2013,
which provide for direct statutory appeal, against the order of the apex adjudicatory fora constituted under each of the said legislations, to the Supreme Court, on the ground that the said provisions violate the basic structure of the Constitution of India by overriding powers of judicial review conferred upon the High Court under Articles 226 and 227 of the Constitution of India.
2. Learned counsel for the Petitioners states that the above-mentioned provisions are unconstitutional to the extent that they take away the power of Judicial Review of the High Court and instead, provide for direct appeal to Supreme Court. He states that the power of Judicial Review of High Court as provided under Articles 226 and 227 of the Constitution, is a part of the basic structure of Indian Constitution and cannot be abridged by any statutory enactment. He states that the said provisions have resulted in increase of the burden of filing in the Supreme Court. He states that the said provisions are liable to be struck down as unconstitutional. He states that in the alternative, the impugned Sections be read down to recast the impugned provisions and the phrase Supreme Court be read as High Court and thereby providing the statutory appeal to the High Court.
3. The present petition was instituted in the year 2014, however, since then in the following decade the issues raised in the petition have been extensively deliberated in several judicial pronouncements by the Supreme Court as well as High Court; and it has been conclusively and authoritatively held that the jurisdiction of the High Courts under Articles 226 and 227 of the Constitution cannot be bypassed by the legislature merely by making a provision for direct statutory appeal to the Supreme Court against an order of a Tribunal.
Section 22 of the National Green Tribunals Act, 2010
4. In this regard, it would be relevant to refer to the judgment of the Supreme Court in Madhya Pradesh High Court Advocates Bar Association and Another vs. Union of India and Another1 wherein a writ petition was filed under Article 32 of the Constitution raising a specific issue with respect to the vires of Section 22 of the National Green Tribunal Act, 2010 (Act of 2010), on the ground that the said provision is unconstitutional as it purports to exclude the writ jurisdiction of the High Courts under Articles 226 and 227 of the Constitution. The Petitioners therein sought a declaration that Section 22 of the Act of 2010 is unconstitutional. The writ petition was dismissed by the Supreme Court and it was concluded that Section 22 of the Act of 2010 is intra vires of the Constitution and it was expressly held that the said provision does not oust the High Courts jurisdiction under Articles 226 and 227 of the Constitution. The observations and conclusions of the Supreme Court at paragraphs nos. 22, 31 and 45 in the aforesaid judgment reads as under:-
22. It is also noteworthy that nothing contained in the NGT Act either impliedly or explicitly, ousts the jurisdiction of the High Courts under Article 226 and 227 and the power of judicial review remains intact and unaffected by the NGT Act. The prerogative of writ jurisdiction of High Courts is neither taken away nor it can be ousted, as without any doubt, it is definitely a part of the basic structure of the Constitution. The High Court’s exercise their discretion in tandem with the law depending on the facts of each particular case. Since the High Court’s jurisdiction remain unaffected, the first question is answered in the negative, against the petitioners.

31. The petitioners have also pleaded that instead of appeal to the Supreme Court under Section 22 from the orders passed by the NGT, an appeal mechanism as a matter of right should also be provided before the concerned High Courts. According to them, appeal to the Supreme Court is inadequate and unaffordable and therefore inaccessible. On this aspect it needs to be observed that even when a direct appeal to the Supreme Court is provided by a statute against the decision of a tribunal, the remedy under Article 226 or 227 before the High Court remains unextinguished. Moreover, the Appeal under Section 22 of the NGT Act, is limited to the grounds under Section 100 of the CPC and the Supreme Court does not function as a regular first appellate Court. However, under Article 226 or 227, remedies on issues of jurisdiction and also under the principles set out in Associated Provincial Picture Houses Ltd. vs. Wednesbury Corporation, are available for an aggrieved party. Subject to discretion being exercised, the affected litigants can move High Court under Article 226 or 227 and in such cases, a SLP under Article 136 of the Constitution could also be maintained to the Supreme Court from the High Courts verdict.

45. In consequence of the above analysis, our conclusions are,
A. The National Green Tribunal under Section 14 & 22 of the NGT Act does not oust the High Court’s jurisdiction under Article 226 & 227 as the same is a part of the basic structure of the Constitution.
B. The remedy of direct appeal to the Supreme Court under Section 22 of the NGT Act is intra vires the Constitution of India.
C. Section 3 of the NGT Act is not a case of excessive delegation of power to the Central Government.
D. The seat of the NGT benches can be located as per exigencies and it is not necessary to locate them in every State. The prayer for relocating the Bhopal NGT to Jabalpur is unmerited and is rejected.

(Emphasis supplied)

4.1 The challenge to the vires of Section 22 of the Act of 2010, therefore does not survive for consideration.
Section 30 and 31 of the Armed Forces Tribunal Act, 2007
5. Similarly, the issue of maintainability of writ petition before the High Court under Article 226 of the Constitution against the orders passed by the Armed Forces Tribunal has been settled by the Supreme Court in its judgment titled as Union of India and Others vs. Parashotam Dass2. The Supreme Court has conclusively held that existence of Sections 30 and 31 of the Armed Forces Tribunal Act, 2007 is not a per se restriction on the exercise of power conferred under Article 226 of the Constitution by the High Court. The Supreme Court has unequivocally held in this judgment that the petitions filed under Article 226 of the Constitution before the High Court against orders of the Armed Forces Tribunal are maintainable. The relevant para reads as under:
26. On the legislature introducing the concept of Tribunalisation (one may say that this concept has seen many question marks vis-a-vis different tribunals, though it has also produced some successes), the same was tested in L. Chandra Kumar case before a Bench of seven Judges of this Court. Thus, while upholding the principles of Tribunalisation under Article 323A or Article 323B, the Bench was unequivocally of the view that decisions of Tribunals would be subject to the jurisdiction of the High Court under Article 226 of the Constitution, and would not be restricted by the 42nd Constitutional Amendment which introduced the aforesaid two Articles. In our view, this should have put the matter to rest, and no Bench of less than seven Judges could have doubted the proposition. The need for the observations in the five-Judges’ Bench in Rojer Mathew case qua the Armed Forces Tribunal really arose because of the observations made in Major General Shri Kant Sharma. Thus, it is, reiterated and clarified that the power of the High Court under Article 226 of the Constitution is not inhibited, and superintendence and control under Article 227 of the Constitution are somewhat distinct from the powers of judicial review under Article 226 of the Constitution.
.
33. ..
III. The Union of India in Civil Appeal No. 5327/2015 titled Union of India v. Thomas Vaidyan M., sought reference to a larger Bench as to, whether, a challenge would lie directly to this Court or only before the High Court. As petitions filed under Article 226 of the Constitution against orders of the Armed Forces Tribunal are held to be maintainable, this matter would also require to be remanded to the High Court to be decided on merits since it is a service matter personal to the litigant and does not involve a point of law of general public importance.
(Emphasis Supplied)

5.1 Similarly, in another recent judgment of this Court in Wing Commander Shyam Naithani vs. Union of India and Others and connected matters3, a Division Bench of this Court, speaking through Justice Manmohan, conclusively decided the issue of maintainability of writ petitions under Articles 226 and 227 of the Constitution against the orders passed by the Armed Forces Tribunal, and held the same to be maintainable. The relevant portion of the judgment reads as under:-
42. To conclude, a Tribunal has to function under the Statute, whereas the higher judiciary (High Courts and the Supreme Court), which is a Constitutional authority, is entrusted not only with the task of interpreting the laws and the Constitution, but also with judicial superintendence over the Tribunals in order to preserve the independence of judiciary while discharging the sovereign function of dispensing justice. The Constitution confers on the Constitutional Court the power of judicial review which is exclusive in nature. Judicial review goes some way to answer the age old question who guards the guards? Judicial review among many other important aspects of the Constitution is indispensable and while creating any other mode of adjudication of disputes, the judicial review cannot be compromised with.

43. Consequently, the power of judicial review has consistently been held to be one of the basic features of the Constitution. Basic feature i.e. forming core structure of the Constitution. The said core structure cannot be affected even by way of constitutional amendment. (See : Kesavananda Bharati Sripadagalveru v. State of Kerala, (1973) 4 SCC 225)

44. The jurisdiction of High Court under Articles 226 and 227 of the Constitution cannot be bypassed merely by making a provision for direct appeal to the Supreme Court against an order of a Tribunal for the reason that the Apex Court exercises jurisdiction under Sections 30 and 31 of the Armed Forces Tribunal Act, 2007 only if a point of law of general public importance is involved. In Ex. Lac Yogesh Pathania (supra), the Supreme Court has clarified that appeals under the Armed Forces Tribunal Act are considered only if a point of general public importance is involved.

45. The Armed Forces Tribunal Act, 2007 excludes the administrative supervision of the High Court under Article 227(4) of the Constitution but not judicial superintendence and certainly not jurisdiction under Article 226 of the Constitution.

46. In Rojer Mathew (supra) judgment, a Constitution Bench of the Supreme Court has held that Article 226 of the Constitution does not restrict writ jurisdiction of High Courts over the Armed Forces Tribunal observing the same can neither be tampered with nor diluted. Instead, the Supreme Court has held that High Court’s jurisdiction has to be zealously protected and cannot be circumscribed by the provisions of any enactment.

47. The Supreme Court in Balkrishna Ram (supra) following the earlier judgment passed by a seven-judges Bench in the case of L. Chandra Kumar (supra) has observed that the writ jurisdiction of High Courts over Tribunals cannot even be taken away by a legislative or constitutional amendments and the 2015 judgment of Union of India v. Maj. Gen. Shri Kant Sharma (supra) by a Bench of two Judges cannot overrule the law already laid down. It has also held that the remedy of a direct appeal from the order passed by Armed Forces Tribunal to the Supreme Court would be extremely difficult and beyond the monetary reach of an ordinary litigant. Consequently, the Supreme Court in Balkrishna Ram (supra) reinstated the right to challenge verdicts of the Armed Forces Tribunal in the High Courts.

48. However, the Writ Court while examining the judgment/order passed by the Tribunal, will exercise the power of judicial review which means that the Court shall examine the decision-making process and interfere only for correcting errors of jurisdiction or errors apparent on the face of record or if the Tribunal acts illegally. (See : Hari Vishnu Kamath (supra); Surya Dev Rai (supra) and Rajendra Diwan v. Pradeep Kumar Ranibala, (2019) 20 SCC 143.)

49. This Court would like to emphasise, with all the power that it commands, that judicial restraint should be exercised when the reasons that a tribunal gives for its decision are being examined. Further, the writ jurisdiction of High Court cannot be exercised in the cloak of an appeal in disguise. (See : Rajendra Diwan v. Pradeep Kumar Ranibala, (2019) 20 SCC 143).11

50. Keeping in view the aforesaid conclusions, the preliminary objection raised by Union of India with regard to the maintainability of the present writ petitions is rejected. List the present batch of matters before the roster bench for consideration in accordance with the parameters laid down hereinabove on 21st March, 2022.

(Emphasis Supplied)
5.2 Thus, the challenge to the vires of Sections 30 and 31 of the Armed Forces Tribunal Act, 2007, therefore, does not survive for consideration.
Section 23 of the Consumer Protection Act, 1986
6. With respect to challenge to the vires of Section 23 of the Consumer Protection Act, 1986 (Act of 1986), the said issue is no longer res integra in view of the judgment of the Supreme Court in State of Karnataka vs. Vishwabharthi House Building Coop. Society4 wherein, the challenge to the constitutional validity of the said provision and the Act of 1986 was negated as far back as in the year, 2003 and the Supreme Court categorically observed that the aggrieved party has the right to take recourse to the remedy of judicial review by approaching the High Court under Articles 226 and 227 of the Constitution. The challenge to the vires of Section 23 of the Act of 1986, therefore, could not have been maintained in this petition filed in the year, 2014. Further, in any event the Act of 1986 has since been repealed and replaced by the Consumer Protection Act, 2019 (Act of 2019).
6.1 However, for the sake of completion we may note that on the issue of power of judicial review by the High Court of the orders passed by consumer forums under the Act of 2019, the Supreme Court in its recent judgments of Ibrat Faizan vs. Omaxe Buildhome Private Limited5 and Universal Sompo General Insurance Co. Ltd. vs. Suresh Chand Jain and Another6 after referring to the relevant provision of the Consumer Protection Act, 2019 and the aforesaid judgment of State of Karnataka (supra), has reiterated that with respect to orders passed by National Consumer Disputes Redressal Commission (NCDRC) before it in an appeal filed under Section 58(1)(a)(iii) or Section 58(1)(a)(iv) of the Act of 2019, a petition before the High Court under Articles 226 and 227 of the Constitution would be maintainable.
6.2 Therefore, the challenge to the vires of Section 23 of the Consumer Protection Act, 1986 does not survive for consideration.
Section 38 of the Advocates Act, 1961
7. With respect to Section 38 of the Advocates Act, 1961 the Supreme Court in Mahipal Singh Rana v. State of U.P.7 has held that on the failure of the concerned Bar Council to take action against misconduct of the Advocate, it is permissible for the High Court to take action against such misconduct in exercise of its jurisdiction under Article 226 of the Constitution. The relevant portion of the judgment reads as under:
30. This Court, while examining its powers under Article 129 read with Article 142 of the Constitution with regard to awarding sentence of imprisonment together with suspension of his practise as an Advocate, in Supreme Court Bar Assn. [Supreme Court Bar Assn. v. Union of India, (1998) 4 SCC 409], the Constitution Bench held that while in exercise of contempt jurisdiction, this Court cannot take over jurisdiction of Disciplinary Committee of the Bar Council [Id., paras 43, 57, 78] and it is for the Bar Council to punish the advocate by debarring him from practise or suspending his licence as may be warranted on the basis of his having been found guilty of contempt, if the Bar Council fails to take action, this Court could invoke its appellate power under Section 38 of the Advocates Act [Supreme Court Bar Assn. v. Union of India, (1998) 4 SCC 409, para 79]. In a given case, this Court or the High Court can prevent the contemnor advocate from appearing before it or other courts till he purges himself of the contempt which is different from suspending or revoking the licence or debarring him to practise [Id., para 80].

52. We may add that what is permissible for this Court by virtue of statutory appellate power under Section 38 of the Advocates Act is also permissible to a High Court under Article 226 of the Constitution in appropriate cases on failure of the Bar Council to take action after its attention is invited to the misconduct.

(Emphasis Supplied)
7.1 Even otherwise, the judgments referred to hereinabove that the jurisdiction of the High Court under Articles 226 and 227 of the Constitution remains unaffected by the provision of direct appeal. Accordingly, the challenge to the vires of Section 38 of the Advocates Act, 1961, therefore, does not survive for consideration.
Section 53T of the Competition Act, 2002
8. The challenge to the vires of Section 53T of the Competition Act, 2002 has been negated by a Coordinate Bench of this Court in Mahindra Electric Mobility Limited and Another v. Competition Commission of India and Another and Connected Matters8. The contention that the said provision is unconstitutional as it excludes scrutiny through judicial review under Article 226 of the Constitution was raised as a ground in the said proceedings and rejected. In the said judgment, the Coordinate Bench also observed that the similar provisions in the TRAI Act, SEBI Act and Electricity Act are valid. The relevant paragraphs read as under:
35. It was submitted that an overemphasis on the technical expertise or qualification of members of the CCI, cannot obscure its role as an adjudicatory body or a judicial tribunal, deciding serious and important question, which directly and adversely implicate those subjects to its jurisdiction. It was argued that the eventual provision of appeal to a body comprising of a retired judge (even of the Supreme Court) would not take away the fact that rule of law would be subverted at the forum of first instance, if judicially trained and experienced members are not mandated to judge the dispute. Counsel submitted that the jurisdiction to decide violation of Section 3 or indulge in deleterious practise which can result potentially in a bar to the manner of carrying on of one’s trade, had grave civil consequences, which the Indian Constitution permits, only if it is adjudicated by a court or a tribunal comprised of personnel with proven judicial experience. Without that prerequisite, the guarantee of equality before law, and equal protection of law is violated. Counsel submitted that the bar to jurisdiction under Section 61 of the Act underscores the fact that the task performed by CCI is essentially judicial, ordinarily performed by civil courts: Section 9 of the Civil Procedure Code envisions jurisdiction over disputes of the kind that the CCI exercises, but for the bar or jurisdiction under Section 61. Learned counsel submitted that the bar of jurisdiction, which resulted in deprivation of the regular course of established courts that had traditional experience in adjudication, resulted in deprivation of the rule of law and violated Article 14 of the Constitution of India. Counsel also impugned the appeal provided by the Act (Section 53T) to the Supreme Court, stating that a direct appeal to the Supreme Court, which tended to exclude scrutiny through judicial review under Article 226 of the Constitution of India, was anathema to the rule of law.
…
146. The next challenge addressed was with respect to Section 53T, which provides for an appeal to the Supreme Court. The submission here was that this tends to exclude scrutiny by the High Court altogether and places a heavy burden on parties adversely affected by the COMPAT’s orders. This court is of opinion that given the fact that no citizen can claim a vested right to an appeal-according to the consistent line of authorities (Anant Mills v. State of Gujarat (1975) 2 SCC 175 : AIR 1975 SC 1234; Ganga Bai v. Vijay Kumar (1974) 2 SCC 393 : AIR 1974 SC 1126). The right once conferred, can be taken away only by law. However, no one can complain that the lack of a further appeal, or that provision of further appeal, is not to their convenience-as is being done, in this case. There may be of course some merit in the thought that if an appeal is provided to the High Court, jurisprudence can develop in the regulatory field, thus generating a body of regulatory law and standards that is available to the regulatory field. However, that can hardly be a ground for holding a law unconstitutional; the policy choice in that regard is to be made by Parliament, not the courts. Therefore, it is held that Section 53T is valid-similar provisions have been made in the TRAI Act, SEBI Act, Electricity Act, etc

(Emphasis supplied)

8.1. In view of the aforesaid judgment, the challenge to the vires of Section 53T of the Competition Act, 2002 does not survive for consideration. For the same reason, the challenge to the provisions of Section 18 of Telecom Regulatory Authority of India Act, 1997, (TRAI) Section 15Z of the Securities and Exchange Board of India Act, 1992 (SEBI) and Section 125 of the Electricity Act, 2003 do not survive for consideration.
9. Section 55 of the Monopolies and Restrictive Trade Practices Act, 1969 has since been repealed and replaced by the Competition Act, 2002. The said Section applies only to cases which were pending on the date of the commencement of the Competition Amendment Act, 2009.
Alternate contention of re-casting the statutory provisions
10. The alternate contention of the Petitioners that the impugned Sections should be read down or re-written to read the phrase Supreme Court therein as High Court, so as to provide the right of appeal to the concerned High Court is untenable in law. It is well settled as held by the Supreme Court in Union of India v. Deoki Nandan Agarwal9 that Courts cannot re-write, re-cast or re-frame the legislation as it has no power to legislate. Also, the said submission of the Petitioners is in ignorance of the legal position that a right to appeal (to High Court) can only be created by the statute and cannot be conferred by the order of the Court.
10.1. Recently, while adjudicating upon the constitutional validity of the rules framed under Central Good and Services Tax Act, 2017, in Reckitt Benckiser India Private Limited vs. Union of India, Through: Its Secretary and Others and connected matters10 a Division Bench of this Court, speaking through Justice Manmohan, negated the challenge to the said statute on the ground of absence of appeal to High Court, and held as under: –
142. In any event, it is well settled that there is no vested right of appeal and an appeal is a creature of the Statute. Right of appeal is neither a natural nor an inherent right vested in a party. It is a substantive statutory right regulated by the Statute creating it. To provide for an appeal or not under a Statute is a pure question of legislative policy (See : Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, (1999) 3 SCC 722 and Kashmir Singh v. Harnam Singh, (2008) 12 SCC 796).

143. If Legislature chooses not to provide for a right to appeal against an order of the authority that itself cannot be a ground to declare an enactment as unconstitutional. This Court in Wing Commander Shyam Naithani v. Union of India, W.P.(C) 6483/2021 & connected matters, 2022 SCC OnLine Del 769 has held as under:..

144. Further, the decisions of NAA are subject to judicial review under Article 226 before the jurisdictional High Courts as is evident from the fact that several petitions have been filed before this Court challenging orders of the NAA. This shows that the affected parties are exercising their right to seek remedies under Article 226 against orders of NAA.

145. Consequently, a robust mechanism in conformity with the constitutional requirements is in place for dealing with grievances of breach of Section 171(1) of the Act, 2017 and hence, it cannot be said that there is no judicial oversight over the decisions of NAA [See : CCI v. SAIL (supra), Shiv Shakti Coop. Housing Society v. Swaraj Developers, (2003) 6 SCC 659].
(Emphasis supplied)

10.2. This was also the finding of the Division Bench in Mahendra Electric Mobility Ltd. (supra) at paragraph 146, as noted above while opining on the provision of the Competition Act, 2002.
10.3. The constitutionality of the enactment providing direct appeals to Supreme Court [instead of the High Court], from the orders of the tribunals was raised before the Supreme Court in Madhya Pradesh High Court Advocates Bar Association and Another (supra) in context of the Act of 2010 and negated. The relevant portion of the judgment reads as under :-.
32. Also importantly, the right to appeal before the High Court is a creature of the statute and is not an inherent right. The provision for appeal to High Court should not therefore be created by issuing a writ of Mandamus as that would be legislating through judicial order, and would impinge upon the well-founded concept of separation of powers.
…
35. The issue of direct appeals to the Supreme Court, or entertaining petitions under Article 136 to challenge tribunals decision, was considered in the case of R.K. Jain v. Union of India, (1993) 4 SCC 119. In paragraph 76 of the said judgment, this Court addressed similar submission to the effect that appeal mechanism should be provided from a tribunals decision, to a division bench of the High Court. The three Judges bench of this Court, however, expressly refrained from issuing direction for creation of appeal provisions to the High Courts, which was perceived to be an impermissible judicial function. So far, the legislature has not acted on the recommendation of this Court but then that issue is within the policy domain of the legislative wing of the State.

36. The implication of the Supreme Court being conceived as the first appellate forum was considered in Rojer Mathew v. South Indian Bank Ltd., (2020) 6 SCC 1, Para. 218 and in that case the Union Government was directed to do a study on the effect of direct appeals to the Supreme Court and place the resultant report before Parliament. But even in Rojer Mathew [supra], the Supreme Court had no occasion to say that direct appeals to the Supreme Court is constitutionally impermissible.

(Emphasis supplied)

10.4. The question of statutory provisions providing direct statutory appeals from tribunals to the Supreme Court, directly arose for consideration before the Constitution Bench of Supreme Court in Rojer Mathew v. South Indian Bank Ltd.11. In the said judgment the Supreme Court framed Issue No. VII and deliberated on this issue in detail wherein at paragraph 200 the Supreme Court took note of the non-exhaustive list of statutes, which provide direct appeals to Supreme Court. The provisions challenged by the Petitioners in this PIL are enlisted in the said paragraph no. 200.
10.5. The Supreme Court noted that the statutory provision of direct appeals had created undesirable and avoidable anomalies. The Supreme Court, however, did not strike down the said appeal provisions as unconstitutional and instead issued direction to the Union of India to consult the Law Commission of India to revisit the said provisions under various enactments providing for direct appeals to the Supreme Court and to instead provide appeal to the Division Benches of High Court, if necessary. In its deliberations, the Supreme Court reiterated that jurisdiction of the High Court under Article 226 of the Constitution, being part of the basic structure remains intact and orders passed by the tribunals remain amenable to the writ jurisdiction of the High Court. The relevant paragraphs of the judgment read as under:
Issue VII : Whether direct statutory appeals from Tribunals to the Supreme Court ought to be detoured?
194. During the course of arguments, various facets were highlighted before this Court, including the soaring pendency of cases and non-adherence of directions of this Court in earlier judgments requiring reconsideration by the legislature of the increasing trend of providing direct statutory appeals to this Court against orders of tribunals.
..
200. Presently, there are more than two dozen statutes which provide direct appeals to the Supreme Court from various tribunals and High Courts. A non-exhaustive list of such statutes includes:
.
(iii) Section 38 of the Advocates Act, 1961 (25 of 1961);
.
(viii) Section 23 of the Consumer Protection Act, 1986 (68 of 1986);
.
(xi) Section 15-Z of the Securities and Exchange Board of India Act, 1992 (15 of 1992);
(xii) Section 18 of the Telecom Regulatory Authority of India Act, 1997 (24 of 1997);
(xiii) Section 53-T of the Competition Act, 2002 (12 of 2003);
(xiv) Section 125 of the Electricity Act, 2003 (36 of 2003);
.
(xvi) Section 30 of the Armed Forces Tribunal Act, 2007 (55 of 2007);
.
(xix) Section 22 of the National Green Tribunal Act, 2010 (19 of 2010);
(xx) Section 423 of the Companies Act, 2013 (18 of 2013);
…

214. The seven-Judge Constitution Bench in L. Chandra Kumar [L. Chandra Kumar v. Union of India, (1997) 3 SCC 261: 1997 SCC (L&S) 577] considered at great length the permissibility of altering the power of judicial review exercisable by High Courts under Article 226. It authoritatively held that all orders passed by tribunals which have been established under Article 323-A or 323-B of the Constitution, shall be amenable to the writ jurisdiction of High Courts. This Court, however, in an attempt to respect the intent of facilitating speedy disposal expressed by Parliament, directed that such orders of the Central Administrative Tribunals be heard by a Division Bench of the High Court if challenged under Article 226. This Court, thus, held : (SCC p. 308, para 91)

.
215. It is hence clear post L. Chandra Kumar [L. Chandra Kumar v. Union of India, (1997) 3 SCC 261 : 1997 SCC (L&S) 577] that writ jurisdiction under Article 226 does not limit the powers of High Courts expressly or by implication against military or armed forces disputes. The limited ouster made by Article 227(4) only operates qua administrative supervision by the High Court and not judicial review. Article 136(2) prohibits direct appeals before the Supreme Court from an order of Armed Forces Tribunals, but would not prohibit an appeal to the Supreme Court against the judicial review exercised by the High Court under Article 226.

.
217. The jurisdiction under Article 226, being part of the basic structure, can neither be tampered with nor diluted. Instead, it has to be zealously protected and cannot be circumscribed by the provisions of any enactment, even if it be formulated for expeditious disposal and early finality of disputes. Further, High Courts are conscious enough to understand that such power must be exercised sparingly by them to ensure that they do not become alternate forums of appeal. A five-Judge Bench in Sangram Singh v. Election Tribunal [Sangram Singh v. Election Tribunal, (1955) 2 SCR 1 : AIR 1955 SC 425] whilst reiterating that jurisdiction under Article 226 could not be ousted, laid down certain guidelines for exercise of such power : (AIR pp. 428-29, para 13)

13. The jurisdiction which Articles 226 and 136 confer entitles the High Courts and this Court to examine the decisions of all tribunals to see whether they have acted illegally. That jurisdiction cannot be taken away by a legislative device that purports to confer power on a tribunal to act illegally by enacting a statute that its illegal acts shall become legal the moment the tribunal chooses to say they are legal. The legality of an act or conclusion is something that exists outside and apart from the decision of an inferior tribunal.

It is a part of the law of the land which cannot be finally determined or altered by any tribunal of limited jurisdiction. The High Courts and the Supreme Court alone can determine what the law of the land is vis-à-vis all other courts and tribunals and they alone can pronounce with authority and finality on what is legal and what is not. All that an inferior tribunal can do is to reach a tentative conclusion which is subject to review under Articles 226 and 136. Therefore, the jurisdiction of the High Courts under Article 226 with that of the Supreme Court above them remains to its fullest extent despite Section 105.

218. It is apparent that the legislature has not been provided with desired assistance so that it may rectify the anomalies which arise from provisions of direct appeal to the Supreme Court. Considering that such direct appeals have become serious impediments in the discharge of constitutional functions by this Court and also affects access to justice for citizens, it is high time that the Union of India, in consultation with either the Law Commission or any other expert body, revisit such provisions under various enactments providing for direct appeals to the Supreme Court against orders of tribunals, and instead provide appeals to Division Benches of High Courts, if at all necessary. Doing so would have myriad benefits. In addition to increasing affordability of justice and more effective constitutional adjudication by this Court, it would also provide an avenue for High Court Judges to keep pace with contemporaneous evolutions in law, and hence enrich them with adequate experience before they come to this Court. We direct that the Union undertake such an exercise expeditiously, preferably within a period of six months at the maximum, and place the findings before Parliament for appropriate action as may be deemed fit.
(Emphasis supplied)
10.6. Therefore, the challenge to the vires of these provisions on the ground of absence of appeal to High Court is without any merit.
11. The alternate submissions of the Petitioners seeking a declaration of the jurisdiction of the Constitutional Courts under Articles 226 and 227 of the Constitution from orders of the Tribunal or a right to maintain an appeal before the High Court against the orders of the Tribunal are inconsistent and belies the Petitioners understanding of the nature of jurisdiction exercised by the High Court in judicial review. The jurisdiction exercised by the writ Court is vastly different and distinct from an Appellate Court. This distinction in the jurisdictions has been pithily set out by the Division Bench of this Court in Wing Commander Shyam Naithani (supra) at paragraph 40 and 41 which reads as under:
40. However, this Court would like to clarify that a right to appeal is a creation of Statute and it cannot be claimed as a matter of right. The right to appeal has to exist. It cannot be created by acquiescence of the parties or by the order of the Court. It is neither a natural nor an inherent right attached to the litigant being a substantive, statutory right. [See : United Commercial Bank Ltd. v. Their Workmen, 1951 SCC 364 : AIR 1951 SC 230; Kondiba Dagdu Kodam v. Savitribai Sopan Gujar, (1999) 3 SCC 722 : AIR 1999 SC 2213; and UP Power Corporation Ltd. v. Virenddra Lal, (2013) 10 SCC 39]. Jurisdiction cannot be conferred by mere acceptance, acquiescence, consent or by any other means as it can be conferred only by the legislature as conferring jurisdiction upon a Court or Authority, is a legislative function. There is no right to appeal against an order/judgment passed by the Armed Forces Tribunal to the High Court.
41. The jurisdiction of a writ Court under Article 226 of the Constitution is vastly different and distinct from that of an appellate Court. The writ Court, while examining the judgment passed by the Tribunal, will exercise the power of judicial review which means that the Court shall examine the decision-making process and interfere only for correcting errors of jurisdiction or errors apparent on the face of record or if the Tribunal has acted illegally. [See : Hari Vishnu Kamath v. Syed Ahmad Ishaque, (1955) 1 SCR 1104 and Surya Dev Rai v. Ram Chander Rai, (2003) 6 SCC 675. Further, the aforesaid judgment was followed by the Supreme Court in the case of Sameer Suresh Gupta Through PA Holder v. Rahul Kumar Agarwal, (2013) 9 SCC 374 and it was held that the power of superintendence conferred on Article 227 of the Constitution is supervisory and that the power of judicial superintendence must be exercised sparingly to keep the subordinate Courts and Tribunals within the limits of their authority. Consequently, a writ petition is not an appeal in disguise. It is not even a substitute for an appeal.
(Emphasis supplied)

12. In view of the aforesaid position in law, the submission of the Petitioners that the impugned provisions be read down to read the phrase High Court instead of Supreme Court has no basis in law and is impermissible.
13. To sum up, the challenge to the vires of the Section(s) of various enactments raised in the present petition already stands negated by the judgments of the Supreme Court and High Court referred to above and the challenge to the vires, therefore, does not survive for consideration. We may however, reiterate that the writ jurisdiction of the High Court under Articles 226 and Article 227 of the Constitution of India against the decision of the statutory tribunals, however, remains unaffected by the aforesaid provisions and there is no ouster, as authoritatively held and clarified in each of the aforesaid judgments.
14. Accordingly, the prayers in the present petition do not survive for consideration and the same is disposed of. Pending applications are disposed of.

MANMEET PRITAM SINGH ARORA, J

ACTING CHIEF JUSTICE
MARCH 19, 2024/rhc/ms

1 2022 SCC OnLine SC 639
2 2023 SCC OnLine SC 314
3 2022 SCC OnLine Del 769
4 (2003) 2 SCC 412 at paragraph 52 and 53
5 2022 SCC OnLine SC 620 at para 29
6 2023 SCC OnLine SC 877 at para 38
7 (2016) 8 SCC 335
8 2019 SCC Online Del 8032
9 (1992) Suppl 1 SCC 323 at para 14
10 2024 SCC OnLine Del 588
11 (2020) 6 SCC 1
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