New ground not allowed in writ appeal argument. In view of our aforesaid analysis we proceed to record our conclusions

B. Sub-section (2) of Section 2: in seriatim:- | 5 Se explanation appended to sub-section (2). (i) A power to issue the writ is original and the jurisdiction exer- 2 aning of word “petitioner” used in explanation attached. cised is original jurisdiction. A. Sub-section (1) of Section 2: (ii) Proceedi der Article 226 of the Constituti 2 ii) Proceedings under Article of the Constitution are in exer- PO eid ime against an order - Maintainability of - Full Bench cise of original jurisdiction of the High Court whereas the proceedings initiated under article 227 of the Constitution are

1. (a) [per majority judgment by four Judges (S.Samvatsar J. con- supervisory in nature. J tra)].-The maintainability of a writ appeal from an order of the learned iii it is i : onstitution it i { Single Judge would de; 1 (iii) When a writ is issued under Article 226 of the Constitution it is 3 SON pend upon many an aspect and cannot be put into i d i i f original jurisdicti heth inst a straitjacket formula. It cannot be stated with mathematical exactitude. Tribe <3 raphe TM AU Sry Et ee l It would depend upon the pleadings in the writ petition, nature of he ribunal or an Inferior Court or Administrative Authorities. | order passed by the learned Single Judge, character and the contour of (iv) The power exercised under Article 226 of the Constitution is in 1 the order, directions issued, nomenclature given and the jurisdictional exercise of original jurisdiction and not supervisory jurisdic- J prospective in the constitutional context are to be perceived. It cannot be tion. I said in a hypertechnical manner that an order passed in a writ petition, (v) Exercise of superviso wer and power of superintendence is | if there is assail to the order emerging from the Inferior Tribunal or not to be e ws, with the h rg pe evisoey uicldietioh Subordinate Courts has to be treated all the time for all purposes to be . x on o” i under Article 227 of the Constitution of India. It would depend upon the (vi) The arder passed in SLP (Civil) No. 9186/2007 is a declaration real nature of the order passed by the learned Single Jud; gs go re of law under Article 141 of the Constitution but the High Court whether the learned Single Judge has exercised his j nop i nde is bound to follow the earlier decisions in the field regard being Article 226 or under Article 227 or both would depend u on Vite Lil had to the concept, of prevedents as pee law laid down by the ied a facet as has been emphasized in the primis. decisions of fos Court and the five Judge Bench decision in oot Bus | e Apex Court. The pleadings, Pr p )perators Association v. State of M.P., 2003(1) 513 = pleadings, as has been indicated hereinabove, also 2003(1) MPJR 158 (FB). | Hi | (HC)390 HIGH COURT (APPEAL TO DB.) ADHINIYAM, 2005 HIGH COURT (APPEAL TO DB.) ADHINIYAM, 2005 (HC)391 (If I d

I vii isio in Ra. v. St emerging from the inferior tribunal or subordinate courts has to be treated

Il te a a7 tn a rr, 3 all the time for all purposes to be under Article 227 of the Constitution of i upon the parties inter se. India. Phraseology used in exercise of original jurisdiction under pe fisA " 8 Article 226 of the Constitution in Section 2 of the Act cannot be | | (viii) The decisions rendered by the Apex Court in the context o given a restricted and construed meaning because an order passed | ) appeal under Letters Patent as regards maintainability of an in a writ petition can tantamount to an order under Articles 226 and 227 I Sop would ya, the field Ra to maintainability of of the Constitution of India and it would depend upon the real nature of | appeal preferred under section 2 of the 2005 Adhiniyam. the order passed by the learned single Judge. To elaborate: Whether the 1

1. (ix) The view taken by the Full Bench in Dr. Jaidev Siddha v, learned single Judge has exercised his jurisdiction under Article 226 or | Jaiprakash FLD, eh — Lely HR I00T NESS 1 under Article 227 or both would depend upon various aspects. f red 4 = 20072) 361 (FB) cannot be As has been held in the case of Surya Dev Rai v. Ram Chander Rai, (A treated to have been impliedly overruled due to dismission of AIR 2003 SC 3044 a writ of certiorari can be issued under Article 226 | | the Special enti pr preferred against the order rendered of the Constitution against an order of a tribunal or an order passed by in the case of Rama and Co. (supra). the subordinate Court. In quintessentiality, it cannot be put in a strait- | Il (x) The law laid down in the case of Dr. Jaidev Siddha v. Jacket formula that any order of the learned single Judge that deals with | | Jaiprakash Siddha, 2007(3) MPL. 595 (FB)=2007(2) MPJR361 an order arising from an inferior tribunal or the subordinate Court is an [UN | (FB), holds the field and the principles laid down therein will order under Article 227 of the Constitution of India and not an order under | | have full applicability. Article 226 of the Constitution. It would not be an overemphasis to state | \ [per S. Samvatsar, J].-The object for which the reference was made that an order in a writ petition can fit into the subtle contour of Articles appears to be that the Division Bench could not declare a judgment 226 and 227 of the Constitution in a composite manner and they can | rendered by the Three-Judge as per incuriam and, hence the matte was coinside, co-exit, over-lap or imbricate. In this context it is apt to note that i N referred to the Larger Bench. This Court now cannot say that the judgment there may be cases where the learned single Judge may feel disposed or I rendered by the Apex Court is not applicable on any reason particularly inclined to issue a writ to do full and complete justice because it is to be Hil i when the judgment in the SLP is the solitary judgment of the Apex Court borne in mind that Article 226 of the Constitution is fundamentally a HH J on the provisions of the Adhiniyam. Earlier, there was no occasion for the repository and reservoir of justice based on equity and good conscience. It i f Apex Court to examine the question of maintainability in the light of the will depend upon factual matrix of the case. Dr. Jaidev Sidda v. I | provisions of the Adhiniyam which came into force with effect from 5th Jaiprakash Siddha, AIR 2007 MP. 269 = 2007(3) MPLJ 595 = 2007(5) HL I April, 2006. The Apex Court dismissed the SLP after considering the fact MPHT 388 = 2007(3) JLJ 151 = 2007(2) MPJR 361 (FB). |! that the judgment of the learned Single Judge hearing writ petition " | against the Board of Revenue was not in original jurisdiction, hence, writ (¢) Limeline other decisions of M.P. High Court. 1 ks Pra in SLP No. 01089007 1s rompers bred oe wl : JLJ 151 = 2007(2) MPJR 361 (FB), hold, that the law laid down in the ! the Supreme Court in the said SLP was about the maintainability of the 396 ¢ of Lakhan a Sonkar v. Gun Carriage Factory, 2007 a) ti I appeal after coming into force of Adhiniyam of 2005 and earlier the Shi (DB); State of MP. v. M.S. Wakankar, 2007(1) MPLJ 99; an i HI | Supreme Court had no occasion to deal with such a situation. Hence, S0 iva Dubey (Jhira) v. Sumit Ranjan Dubey, 2006(4) MPHT 420 ( A in | far as this Court is concerned, said view has attained finality and cannot rid the law lay down the law correctly being in consonance and accord o | . be reopened in view of the aforesaid decision of the Apex Court. Therefore, e decisions of the Apex Court. judgment in SLP No. 9186/2007 is a binding precedent which is to be i (2) Full Bench in the case of Dr. Jaidev Sidda v. Jaiprakash Siddha, 11] followed by this High Court unless the view taken by the Apex Court in AIR 2007 M.P. 269 = 2007(3) MPLJ 595 = 2007(5) MPHT 388 = 2007(3) ! the said SLP is overruled. Manoj Kumar v. Board of Revenue, 2008(1) JLJ 151 = 2007(2) MPJR 361 (FB), has overurled the judgment of Division | | M.P.LJ. 152 = 2007(4) MPHT 545 = 2007(111) MPJR 328 (FB). re of M.P. High Court in the case of M/s. Rama and i Pa of ! | (b) [As decided in strength of three Judges Full Bench].-The -P., 20073) MPLJ 154 = 2007(3) MPHT 325 = 2007(3) ied I | pleadings in the writ petition, nature of the order passed by the learned 20072) MPJR 229 (DB) and held that even if the Single Judge hearing single Judge, character and the contour of the order, directions issued, 4 petition under Article 226 of the Constitution against the order passed | nomenclature given, the jurisdictional prospective in the constitutional by the Court or Tribunal, a writ appeal lies. Before the Full Bench could context are to be perceived. It cannot be said in a hyper technical manner deliver the aforesaid judgment, the judgment of Division Bench in the i | that an order passed in a writ petition, if there is assail to the order Rama and Co. (supra) was challenged before the Supreme Court in SLP l | | | |

(HC)392 HIGH COURT (APPEAL TO DB.) ADHINIYAM, 2005 HIGH COURT (APPEAL TO DB.) ADHINIYAM, 2005 (H()393 Il

lhe (C) No.9186/07. Said SLP was dismissed by the Apex Court by Court was not justified in holding that Apex Court's earlier order onl I I that no appeal lies before the Division Bench if a writ petition is 3 waived the limitation for a The High Court was directed os l | before the High Court against the order of Board of Revenue as the 3 dispose of the LPA on merits if it was otherwise free from defect. On that | is not an original order. score alone the High Court’s order is unsustainable. In addition, the High | [

1. (d) Proviso of 8.2(1) -Maintainability of bar against an Inter. Court seems to have gone by the nomenclature i.e. the description given | | locutory order [As decided in strength of three Judges Full Bench)..-The in the writ petition to be one under Art.227 of the Constitution. The High § proviso stipulates that no appeal would lie against an interlocutory order, Court did not consider the nature of the controversy and the prayer ! But an eloquent and pregnant one, when an interlocutory order has the involved in the Writ Petition. The prayer was to quash the order of | | semblance of final order or affect the rights of the parties, it can be treated assessment passed by the Asst. Commissioner. Commercial Tax levying | as an order for all practical purposes. The said exception cannot be treated purchase as well as Entry Tax. The High Court was not justified in holding ! il in absolute terms to nullify the enactment. Therefore, the order has tobe that the Letters Patent Appeal was not maintainable, MM.T.C. Ltd. v. 1! MY a final order by way of final disposal. It cannot be regarded as the correct Commissioner of Commercial Tax, 2009(2) MPLJ 227 (SC)(FB). L [ interpretation of the Proviso in entirely, for a writ Court can issue diree- [3] Error of law.-An error of law made by a Tribunal can be corrected | I tions or pass orders in its inherent jurisdiction which can assume the by the High Court under Article 226 of the Constitution. Writ petition was colour cf finality and, at an interim stage, can vitally affect the rights of filed not only under Article 227 but also under Art. 226 of the Constitution Hi I the parties or destroy the rights or create a situation by which the relega- therefore the order passed by the single Judge is the order under Article He | ti0i. .0 the original stage would become impossible. 226 of the Constitution and an appeal against the order was available to I | M Conclusions in seriatim: the Division Bench under the Act of 2005. Ramanuj Tiwari v. M.P. State [118 \ (i) The proviso to Section 2(1) of M.P. Uchcha Nyayalaya (Khand Co-operative Tribunal, 2008 RN 175. | Nyaypeeth Ko Appeal) Adhiniyam, 2005 does not create an 3. Some writ appeals held not maintainable. - | | l " absolute bar to prefer an appeal to the Division Roel ] [1] Appeal against the judgment and decree passed by Single | ! (ii) An appeal can be preferred against an order regard being had Judge in appellate jurisdiction.-No provision has been made in the fil y | tothe nature, tenor, effect and impact of the order passed by the M.P. Act No. 14 of 2006 for filing a writ appeal against the judgment and | H | learned single Judge. decree passed by the Single Judge in appellate jurisdiction. Laxminarayan | {HA | (iii) It should be borne in mind that instances given in referred v. Shivlal Gujar, 2010(1) MPLJ 186 = ILR 2009 MP 2503. | several decisions in this case are not exhaustive but illustrative 2] Refilling of the writ appeal to challenge the same order.-Ap- | In nature, because various kinds/categories of orders | pellants sought to challenge the same order dated 15- 11-2006 dismissing I passed AR ERarTee of jurisdiction under Article 226 of the the writ petition No.4641/06 and which was assailed in previous writ stitution of India. appeal No.718/06 and got it dismissed as withdrawn and seeking reference | | (iv) The facts in each case, the nature and the character of the order to a larger bench. Held, the present writ appeal is not maintainable and ] | are to be scrutinised to appreciate the trappings of the same. 4 filing of present writ appeal is an abuse of the process of the Court and | | | Arvind Kumar Jain v. State of Madhya Pradesh, AIR 2007 we decline to entertain the writ appeal. On perusal of the pleadings and Hh M.P. 276 = 2007(3) MPLJ 565 = 2007(3) MPHT 376 = 2007(3) other orders, by refilling of the writ appeal, High Court is inclined to think 1 | JLJ 187 = 2007(3) MPJR 4 (FB). a deliberate, adroit and ingenious attempt has been made to create a maintainable - different kind of impression. The appellants have chosen their own facts 2. Some writ appeals held bial : and put forth them before the Court. Once they had filed the writ appeal, | ! 1 Appeal against an interlocutory order.-Impugned order 8 they could have got it adjudicated. They chose not to do so and filed an i \ i having semblance of final order and have affected the rights of the appel application in writing and withdrew the same by stating that after the | lant. Hence, the instant appeal is maintainable. Arvind Kumar Jain v. deposit of the amount due the appeal had been dered inf 4 ryt} 3 ppe: rende; infructuous. | State of M.P., AIR 2007 M.P. 276 = 2007(3) MPLJ 565 Relied on. Municipal High Court would have been under sbligation &. the refe if ion, Gwalior v. Leela Ram & Ors., AIR 2010 MP 219 = 2010(4) © Court na pag have been under obligation to answer the reference i Corporation, ” the Court had been convinced that the writ appeal was maintainable and MPLJ 110. further that the reference at the instance of the appellants deserved to be 12] Appeal against the order of Single Judge made in exercise answered but as the factual matrix would exposit, the writ appeal was ] of original jurisdiction.-LPA refused High Court on the grounds that dismissed as withdrawn. While dismissing previous writ appeal as the order was passed in exercise of power of superintendence under Art. withdrwn High Court granted liberty to approach other forum or seek | 227 of the Constitution of India therefore LPA is not maintainable & the remedy as permissible in law. The liberty was not taken to file writ appeal. Apex Court's earlier order only waived the limitation. Held, that, High To approach other forum would not mean to file another writ appeal | {i LR f | | | |

Ii (HC)394 HIGH COURT (APPEAL TO DB.) ADHINIYAM, 2005 HIGH COURT (APPEAL TO DB.) ADHINIYAM, 2005 (HC)395 {

fi challenging the same order and seek reference to a larger Bench | h ‘sufficient cause’ as used in the main provision. The appended | | | incorporation of such a prayer in the relief clause. Great Galleon Lag. planation is only to provide an additional support to the dominant object | Union of India, 2009(2) MPL. 609 (FB). il of the Act in erder to make it meaningful and purposeful. An explanation | 4. Availability of Intra Court appeal and/or Right of appeal. cannot, however, take away a statutory right with which any person under | \ is provided in S.2(1) that an appeal shall lie from a judgment or statue has been clothed nor can set at naught working of an Act by causing | passed by one Judge of the High Court in exercise of original jus di hindrance by its interpretation. Held, that, the explanation, which has | | | under Art. 226 of the Constitution to a Division Bench comprising _ been attached has to be understood to provide the additional support to | judges of same High Court. Thus, an Intra Court appeal was all tho the dominant object of the Act for giving a meaningful purpose and also available only against a judgment and order passed by one Judge of the to avoid the creation of any obstacle to the statutory right of an appellant | High Court in exercise of its original jurisdiction under Art. 226 of the given under the statute. Dr. Hari Singh Gaur Vishwavidyalaya, Sagar | Hi | Constitution and not against any judgment or order passed under Art, (M.P.) v. Rajeshwar Yadav, 2008(4) MPLJ 274. iE | 226 of the Constitution as such. The legislative intent behind Clause 10 2. Meaning of word “petitioner” used in explanation attached.- | | of the Letters Patent and Section 2 of the Adhiniyam of 2005 was that The word ’petitioner’ though is used in the explanation but it does not | a single Judge of the High Court hears a matter and passes an order, e mean that petitioner who files a writ petition in fact the word 'petitioner’ I litigant must have a right of appeal to a Division Bench of the High Court, is to be understood with reference to the context of sub-section (2) of | | The right of appeal, therefore, was not available in every writ petition Section 2 of the Adhiniyam, 2005 to mean and to be understood as a party | heard and decided by one judge of the High Court. Priyank Chansoria v. who files the Writ Appeal and not the Original Petition. Dr. Hari Singh | 1 High Court of M.P., 2009(4) MPLJ 586 (DB). Gaur Vishwavidyalaya, Sagar (M.P.) v. Rajeshwar Yadav, 2008(4) MPLJ 5. Rights of Writ Court.-Writ Court can curtail the relief and that 274. HI would not tantamount to interfering in the question jurisdictional fact | |] which is based on ample evidence or material fact. General Manager, Bank Note Press, Dewas v. Bank Note Press Office Staff Asso. Dewas, 2008(4) 3. Power to make rules.-(1) The High Court may, from time to { MPLJ 424 (DB). time, make rules for carrying out all or any of the purposes of this Act. ] | 6. Jurisdiction.-A larger Bench has jurisdiction to reconsider the (2) In particular and without prejudice to the generality of the Hil | entire matter afresh and redetermine the issue involved in the light of foregoing power, such rules may provide for the procedure of filing, | i | the provisions of the Act, Rules and Regulations. Pabitra Mohan Dash he hearing and disposal of appeal under sub-section (3) of Section 2. 1 State of Orissa, (2001) 2 SCC 480 Relied on. Great Galleon Ltd. v. Union 4. Repeal.-{1) The Madhya Pradesh Uchcha Nyayalaya (Letters | of India, 2009(2) MPLJ 609 (FB). Patent Appeals Samapti) Adhiniyam, 1981 (No. 29 of 1981) is hereby 7. Third appeal barred.-Third appeal against the judgment and repealed. | decree of learned Single Judge of High Court is concerned, the same stand 2) Notwithstanding sudh:ye: anything'donié 6 any action | barred under S.100A of the Civil Procedure Code with effect from 1-2-1971 ws under or in isbn of wed said oe ot which has attained IN and does not stand revived under Section 4(1) of the Adhiniyam, 2005. the finality shall not be reopened in any court of law. HN Ratanlal v. Purshottam, 2006(4) MPLJ 620 (FB). Hi] New ground not allowed in writ appeal argument .Jn, EH COMMENTARY ment a new ground raised by the learned counsel for the appellant hii 1. Third appeal barred.-Third appeal against the judgment and : was not taken in the writ petition as well as in appeal, therefore it was decree of \earned Single Judge of High Court pm the same stand | held, when the ground was not raised before the Writ Court, it would not barred under S.100A of the Civil Procedure Code with effect from 1-2-1977 | | be proper for this Court in the Intra Court appeal to examine the question and does not stand revived under Section 4(1) of the Adhiniyam, 2005. afresh. Azmer Singh v. Board of Revenue, 2007(4) MPLJ 277 = 2008 RN Ratanlal v. Purshottam, 2006(4) MPLJ 620 (FB). | 21 = 2007(4) MPHT 256 (DB), 4 : 3 3 2. By repealing provision Clause 10 of Letters Patent not | B. Sub-section (2) of Section 2: revived. i) Where an Act is passed repealing a repealing enactment, it | 1. Scope of the explanation appended to sub-section (2).-In shall not be considered as reviving any enactment previously repealed absence of any vagueness in the main section the ambit of the explanation unless words are added reviving the enactment. (ii) The general rule of hi cannot be understood to mean that the same is in the clarificatory nature construction in relation to repeal of a repealing Act and observed that the |] | 0 as to make it inconsistent with the dominant object which it seems to repeal of a repealing Act does not revive anything repealed thereby unless be and when in the main section word "sufficient cause’ has been used a different intention in the repealing statute expressly or implicity ap- i | then the explanation would not control or restrict the meaning of the pears. i I!

| (HC)396 H.C. OF M.P. CASE FLOW MANAGEMENT RULES, 2006 I Held, in the absence of any express or implicit provision in the | Adhiniyam providing for appeal from a judgment, decree or order i by learned Single Judge under Section 96 of the CPC to a Division | by virtue of the repeal of the M.P. Uchcha Nyayalaya (Letters Ii Appeals Samapti) Adhiniyam, 1981 under Section 4 of the 2005 I hiniyam, appeal under Clause 10 of the Letters Patent from a ji I and decree passed by learned Single Judge in exercise of appellate diction under Section 96 of the Code of Civil Procedure are not | Smt. Shashibai v. Smt Revabai, 2008(1) MPLJ 92 = 2007(4) | 467(FB). | THE HIGH COURT OF MADHYA PRADESH CASE I FLOW MANAGEMENT RULES, 2006 | CONTENTS