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Manindra Mohan Shrivastava, J.—This writ appeal is directed against order dated 31-10-2011 passed by the learned Single Judge in Writ Petition (Art. 227) No. 6343 of 2011, by which, the petition, styled as under Article 227 of the Constitution of India, has been disposed off by the learned Single Judge, reserving liberty to the petitioners to adopt proper procedure available under the law. There is, however, an office objection with regard to maintainability of the instant writ appeal, in view of the provisions contained in proviso to sub section (1) of Section 2 of the Chhattisgarh High Court (Appeal to Division Bench) Act. 2006 (In short" the Act of 2006"). Therefore, learned counsel for the appellants was heard on the question of maintainability of the present appeal. By the aforesaid writ petition under Article 227 of the Constitution of India, the petitioners assailed legality and validity of order dated 21-05-2010 passed by the Board of Revenue, Chhattisgarh, Bilaspur.
Briefly stated facts, as stated in the writ petition, are that the petitioners moved an application for mutation of land records in their favour before the Naib Tahsildar, Baradwar. Maintainability of mutation proceedings was objected to by the private respondents on the ground that order of mutation having already been passed by the competent authority namely Gram Panchayat Sakrelikala, the Naib Tahsildar had no jurisdiction to re-open and the said objection was rejected on 19-06-2001, against which, revision was filed by the respondents before the Collector, wherein records were requisitioned. Thereafter, ex parte order of mutation was passed by the Naib Tahsildar on 06-08-2001 and the ex parte proceedings culminated in final order dated 22-08-2001, directing mutation in favour of the petitioners. In the revision before the Collector, order was passed on 28-07-2004, by which, order dated 19-06-2001 as well as order dated 22-08-2001 passed by the Naib Tahsildar were set aside. The order of the Collector was thereafter challenged by way of revision before the Board of Revenue. Vide order dated 21-05-2010, the Board of Revenue set aside the order of the Collector which led to filing of the aforestated petition styled as under Article 227 of the Constitution of India, which has been dismissed by the learned Single Judge. Hence, this appeal.
Learned counsel for the appellants submitted that the office objection with regard to maintainability of the appeal is liable to be overruled, because the petition of the petitioners before the learned Single Judge was both under Article 226 as well as under Article 227 of the Constitution of India. Learned counsel for the appellants submitted that though the petition was titled as writ petition under Article 227 of the Constitution of India, the appellants substantially sought to invoke certiorari jurisdiction of this Court under Article 226 of the Constitution of India. Therefore, the petition before the learned Single Judge was not pure and simple petition under Article 227 of the Constitution of India, as such, the petitioners could not be denied their statutory right of appeal and for that reason, the provision as contained in proviso to sub section (1) of Section 2 of the Act of 2006, would not come in the way of maintainability of instant writ appeal. In support of his submission, he has relied upon the decision of Division Bench of this Court (Suresh Gupta vs. Aditya Jain and others) in Writ Appeal No. 70 of 2009, decided on 19-07-2010.
In order to decide the issue with regard to maintainability of this writ appeal, it is apposite to refer to the relevant provision relating to writ appeal contained in the Act of 2006. Section 2(1) of the Act of 2006 is extracted below for ready reference:-
Appeal to the Division Bench of the High Court from a judgment or order of one judge of the High Court made in exercise of original jurisdiction:-
An appeal shall lie from a judgment or order passed by one Judge of the High Court in exercise of original jurisdiction under Article 226 of the Constitution of India, to a Division Bench comprising of two Judge of the same High Court.
Provided that no such appeal shall lie against an interlocutory order or against an order passed in exercise of supervisory jurisdiction under Article 227 of the Constitution of India.
A perusal of the aforesaid provision shows that a right and remedy of appeal has been provided. Sub section (1) of Section 2 of the Act of 2006 expressly provides that an appeal shall lie from a judgment or order passed by one Judge of the High Court in exercise of original jurisdiction under Article 226 of the Constitution of India, to a Division Bench comprising of two Judge of the same High Court. The proviso, however, excludes interlocutory order or an order passed in exercise of supervisory jurisdiction under Article 227 of the Constitution of India. Therefore, the remedy of appeal, as expressly provided under the law, is only in those cases, where judgment or order has been passed by one Judge of the High Court in exercise of original jurisdiction under Article 226 of the Constitution of India. But, where the order is either interlocutory order or an order, which has been passed in exercise of supervisory jurisdiction under Article 227 of the Constitution of India, no appeal would lie. The question, therefore, which needs to be adverted to, in order to decide the issue with regard to maintainability of this appeal, is whether the impugned order passed by the learned Single Judge can be categorized as a judgment or order passed in exercise of original jurisdiction under Article 226 of the Constitution of India or in substance, an order passed in exercise of supervisory jurisdiction under Article 227 of the Constitution of India.
The issue with regard to maintainability of an appeal came up before the Supreme Court in a series of cases, wherein relevant principles and guidelines in order to ascertain the true nature of the order under appeal have been laid down. One of the earliest decisions on this issue has been rendered by the Supreme Court in the case of Umaji Keshao Meshram and Others Vs. Radhikabai and Another, The distinction between the powers conferred by Article 226 and that under Article 227 of the Constitution of India was elaborated, relevant extracts of which, are reproduced as under:-
"According to the Full Bench even were clause 15 to apply, an appeal would be barred by the express words of clause 15 because the nature of the jurisdiction under Articles 226 and 227 is the same inasmuch as it consists of granting the same relief, namely, scrutiny of records and control of subordinate courts and tribunals and, therefore, the exercise of jurisdiction under these articles would be covered by the expression "revisional jurisdiction" and "power of superintendence". We are afraid, the Full Bench has misunderstood the scope and effect of the powers conferred by these articles. These two articles stand on an entirely different footing. As made abundantly clear in the earlier part of this judgment, their source and origin are different and the models upon which they are patterned are also different. Under Article 226 the High Courts have power to issue directions, orders and writs to any person or authority including any Government. Under Article 227 every High Court has power of superintendence over all courts and tribunals throughout the territory in relation to which it exercises jurisdiction. The power to issue writs is not the same as the power of superintendence. By no stretch of imagination can a writ in the nature of habeas corpus or mandamus or quo warranto or prohibition or certiorari be equated with the power of superintendence. These are writs which are directed against persons, authorities and the State. The power, of superintendence conferred upon every High Court by Article 227 is a supervisory jurisdiction intended to ensure that subordinate courts and tribunals act within the limits of their authority and according to law (see State of Gujarat v. Vakhatsinghji Vajesinghji Vaghela 34 and Ahmedabad Mfg. & Calico Ptg. Co. Ltd. v. Ram Tahel Ramnand). The orders, directions and writs under Article 226 are not intended for this purpose and the power of superintendence conferred upon the High Courts by Article 227 is in addition to that conferred upon the High Courts by Article 226. Though at the first blush it may seem that a writ of certiorari or a writ of prohibition partakes of the nature of superintendence inasmuch as at times the end result is the same, the nature of the power to issue these writs is different from the supervisory or superintending power under Article 227. The powers conferred by Articles 226 and 227 are separate and distinct and operate in different fields. The fact that the same result can at times be achieved by two different processes does not mean that these two processes are the same.
Under Article 226 an order, direction or writ is to issue to a person, authority or the State. In a proceeding under that article the person, authority or State against whom the direction, order or writ is sought is a necessary party. Under Article 227, however, what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority and according to law. Prior to the commencement of the Constitution, the Chartered High Courts as also the Judicial Committee had held that the power to issue prerogative writs possessed by the Chartered High Courts was an exercise of original jurisdiction (see Mahomedalli Allabux v. Ismailji Abdulali, Raghunath Keshav Khadilkar v. Poona Municipality, Ryots of Garabandho v. Zemindar of Pariakimedill and Moulvi Hamid Hasan Nomani v. Banwarilal Roy). In the last mentioned case which dealt with the nature of a writ of quo warranto, the Judicial Committee held:
In Their Lordships'' opinion any original civil jurisdiction possessed by the High Court and not in express terms conferred by the Letters Patent or later enactments falls within the description of ordinary original civil jurisdiction." By Article 226 the power of issuing prerogative writs possessed by the Chartered High Courts prior to the commencement of the Constitution has been made wider and more extensive and conferred upon every High Court. The nature of the exercise of the power under Article 226, however, remains the same as in the case of the power of issuing prerogative writs possessed by the Chartered High Courts. A series of decisions of this Court has firmly established that a proceeding under Article 226 is an original proceeding and when it concerns civil rights, it is an original civil proceeding (see, for instance, State of U.P. v. Vijay Anand Maharaja, CIT v. Ishwarlal Bhagwandas, Ramesh v. Seth Gendalal Motilal Patni, Arbind Kumar Singh v. Nand Kishore Prasad and Ahmedabad Mfg. & Calico Ptg. Co. Ltd. v. Ram Tahel Ramnand).
Consequently, where a petition filed under Article 226 of the Constitution is according to the Rules of a particular High Court heard by a Single Judge, an intra-court appeal will lie from that judgment if such aright of appeal is provided in the Charter of that High Court, whether such Charter be Letters Patent or a statute. Clause 15 of the Letters Patent of the Bombay High Court gives in such a case a right of intra-court appeal and, therefore, the decision of a Single Judge of that High Court given in a petition under Article 226 would be appealable to a Division Bench of that High Court.
Dealing with the question as to whether appeal would lie from the decision of the learned Single Judge, incases, where petition is filed both under Article 226 and 227 of the Constitution of India, it was held:
"Petitions are at times filed both under Articles 226 and 227 of the Constitution. The case of Hah Vishnu Kamath v. Syed Ahmad Ishaque� before this Court was of such a type. Rule 18 provides that where such petitions are filed against orders of the Tribunals or authorities specified in Rule 18 of Chapter XVII of the Appellate Side Rules or against decrees or orders of courts specified in that rule, they shall be heard and finally disposed of by a Single Judge. The question is whether an appeal would lie from the decision of the Single Judge in such a case. In our opinion, where the facts justify a party in filing an application either under Article 226 or 227 of the Constitution, and the party chooses to file his application under both these articles, in fairness and justice to such party and in order not to deprive him of the valuable right of appeal the court ought to treat the application as being made under Article 226, and if in deciding the matter, in the final order the court gives ancillary directions which may pertain to Article 227, this ought not to be held to deprive a party of the right of appeal under clause 15 of the Letters Patent where the substantial part of the order sought to be appealed against is under Article 226. Such was the view taken by the Allahabad High Court in Aidal Singh v. Karan Singh and by the Punjab High Court in Raj Kishan Jain v. Tulsi Dass and Barham Dutt v. Peoples'' Cooperative Transport Society Ltd., New Delh and we are in agreement with it.
The aforesaid decision was followed by the Supreme Court in its subsequent decisions in Sushilabai Laxminarayan Mudliyar and others Vs. Nihalchand Waghajibhai Shah and others,
In yet another decision of the Supreme Court in the case of M/s. Lokmat Newspapers Pvt. Ltd. Vs. Shankarprasad, similar issue came up for consideration in para 16 of the reported judgment SCC 295), the Supreme Court observed:-
"It is, therefore, obvious that the writ petition invoking jurisdiction of the High Court both under Articles 226 and 227 of the Constitution had tried to make out a case for the High Court''s interference seeking issuance of an appropriate writ of certiorari under Article 226 of the Constitution of India. Basic averments for invoking such a jurisdiction were already pleaded in the writ petition for the High Court''s consideration. It is true, as submitted by learned counsel for the appellant, that the order of the learned Single Judge nowhere stated that the Court was considering the writ petition under Article 226 of the Constitution of India. It is equally true that the learned Single Judge dismissed the writ petition by observing that the courts below had appreciated the contentions and rejected the complaint. But the said observation of the learned Single Judge did not necessarily mean that the [carried Judge was not inclined to interfere under Article 227 of the Constitution of India only. The said observation equally supports the conclusion that the learned Judge was not inclined to interfere under Articles 226 and 227. As seen earlier, he was considering the aforesaid writ petition moved under Article 226 as well as Article 227 of the Constitution of India. Under these circumstances, it is not possible to agree with the contention of learned counsel for the appellant that the learned Single Judge had refused to interfere only under Article 227 of the Constitution of India when he dismissed the writ petition of the respondent.
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It was open to the respondent to invoke the jurisdiction of the High Court both under Articles 226 and 227 of the Constitution of India. Once such a jurisdiction was invoked and when his writ petition was dismissed on merits, it cannot be said that the learned Single Judge had exercised his jurisdiction only under Article 226 (sic 227) of the Constitution of India. This conclusion directly flows from the relevant averments made in the writ petition and the nature of jurisdiction invoked by the respondent as noted by the learned Single Judge in his judgment, as seen earlier. Consequently, it could not be said that clause 15 of the Letters Patent was not attracted for preferring appeal against the judgment of the learned Single Judge. It is also necessary to note that the appellant being the respondent in letters patent appeal joined issues on merits and did not take up the contention that the letters patent appeal was not maintainable. For all these reasons, therefore, the primary objection to the maintainability of the letters patent appeal as canvassed by learned counsel for the appellant, has to be repelled. Point 1 is, therefore, answered in the affirmative against the appellant and in favour of the respondent. It takes us to the consideration of points arising for our decision on merits.
The Supreme Court again relied upon its earlier decision in the case of Umaji Keshao Meshram (supra).
The issue relating to maintainability of writ appeal again came up for consideration before the Supreme Court in decisions of Mavji C. Lakum Vs. Central Bank of India, , Shahu Shikshan Prasarak Mandal and Another Vs. Lata P. Kore and Others, M.M.T.C. Limited Vs. Commissioner of Commercial Tax and Others, State of Madhya Pradesh and Others Vs. Visan Kumar Shiv Charan Lal,
In the case of Mavji C. Lakum (supra), the earlier decisions rendered in the case of Umaji Keshao Meshram, Sushilabai Laxminarayan Mudliyar and others and Lokmat Newspapers Pvt. Ltd. (supra) were followed while examining the question of maintainability of the writ appeal in that particular case on its facts as following:-
"The situation is no different in the present case. The respondent had raised the contentions regarding the order of the Tribunal in the very same manner. Though the learned Judge observed that he was acting only under Article 227 of the Constitution of India, it cannot be said that the writ petition was disposed of only under Article 227 of the Constitution. The writ petition was such as would fall also under Article 226 of the Constitution which label was already attached to the writ petition. Similar relief was also sought for by 735 praying for an appropriate writ, order or direction for quashing the Industrial Tribunal''s order. We are, therefore, convinced that the law laid down in Lokmat case 3 applies on all fours. In the same para 16 this Court proceeds to observe: M/s. Lokmat Newspapers Pvt. Ltd. Vs. Shankarprasad,
16.... It was open to the respondent to invoke the jurisdiction of the High Court both under Articles 226 and 227 of the Constitution of India. Once such a jurisdiction was invoked and when his writ petition was dismissed on merits, it cannot be said that the learned Single Judge had exercised his jurisdiction only under Article 226 (sic 227) of the Constitution of India. This conclusion directly flows from the relevant averments made in the writ petition and the nature of jurisdiction invoked by the respondent as noted by the learned Single Judge in his judgment, as seen earlier. Consequently, it could not be said that Clause 15 of the Letters Patent was not attracted for preferring appeal against the judgment of the learned Single Judge." Similar observations regarding Articles 226 and 227 of the Constitution are to be found in the subsequent decision in Surya Dev Rai v. Ram Chander Rai where the Court has followed the law laid down in Umaji Keshao Meshram case 2 as also in Lokmat case 3. We are, therefore, convinced that the Division Bench erred in treating the matter falling only under Article 227 of the Constitution of India.
In the case of Shahu Shikshan Prasarak Mandal and another (supra), the judgment rendered in the case of Umaji Keshao Meshram, Mavji C. Lakum (supra) and earlier decisions were again considered and on facts, it was found that the effect of the provisions relating to writ appeal and the decisions of the Supreme Court were not considered, while holding that the appeal was not maintainable and the case was remitted to the High Court to consider afresh in the light of the applicable provisions and aforesaid decisions of the Supreme Court.
In the case of M/s. M.M.T.C. Limited (supra), the Supreme Court considered identical issue with regard to maintainability of Writ appeal in the backdrop of provisions contained in sub section (1) of Section 2 of the M.P. Uchacha Nyayalay (Khand Nyaypeth Ko Appeal) Adhiniyam, 2005 (In short "the Adhiniyam of 2005"). The provision contained in sub section (1) of Section 2 of the Adhiniyam of 2005 is identical and exactly on same lines as contained in sub section (1) of Section 2 of the Act of 2006.
In the case of State of Madhya Pradesh & Others (supra), the Supreme Court traced the development of law regarding maintainability of writ appeal with particular reference to the provisions relating to Letters Patent Appeal under Clause 15 (Letters Patent) (M.P.). Upon survey of earlier decisions, the Supreme Court found that the writ appeal was maintainable and deserve hearing on merits.
The fundamental proposition of law laid down by the Supreme Court in the case of Umaji Keshao Meshram (supra) has throughout been followed in all the decisions that where the facts justify a party in filing an application either under Article 226 or 227 of the Constitution of India, and the party chooses to file his application under both these Articles, in fairness and justice to such party and in order not to deprive him of the valuable right of appeal, the Court ought to treat the application as being made under Article 226, and if in deciding the matter, in the final order the court gives ancillary directions which may pertain to Article 227, this ought not to be held to deprive a party of the right of appeal under Clause 15 of the Letters Patent where the substantial part of the order sought to be appealed against is under Article 226. The aforesaid principle has been applied in the facts and circumstances of the various cases.
In the case of Mavji C. Lakum (supra), it was found that the writ petition was not only under Article 227 of the Constitution of India, but there was also a specific mention of Article 226. The grounds raised against order of the Tribunal specifically suggested that the order of the Tribunal was assailed as arbitrary, unreasonable, unjust and perverse. It was further noted that the complaint against the order of the Tribunal that there was failure on it''s part to appreciate certain facts and eventualities, and therefore there was non-application of mind on the part of the Tribunal. The Tribunal''s approach was also criticized as perverse. By applying the well settled principles in those facts and circumstances, the writ appeal was held maintainable.
In the case of M.M.T.C. Limited (supra), it was observed by the Supreme Court that it was open to invoke the jurisdiction of the High Court both under Article 226 and 227 of the Constitution of India and once such jurisdiction was invoked and when writ petition was dismissed on merits, it cannot be said that the learned Single Judge, had exercised the jurisdiction only under Article 227 of the Constitution of India.
The scope of Article 226 and 227 of the Constitution of India and the distinction between the two came up for consideration before the Supreme Court in the case of Surya Dev Rai Vs. Ram Chander Rai and Others, wherein in para 17, 19 & 25, it was observed as follows:-
"A perusal of the judgment shows that the above passage has been quoted "incidentally" and that too for the purpose of finding authority for the proposition that a Judge sitting on the original side of the High Court cannot be called a court "inferior or subordinate to the High Court" so as to make his orders amenable to writ jurisdiction of the High Court. Secondly, the abovesaid passage has been quoted but nowhere the Court has laid down as law by way of its own holding that a writ of certiorari by the High Court cannot be directed to a court subordinate to it. And lastly, the passage from Halsbury quoted in Naresh Shridhar Mirajkar case 7 is from the third edition of Halsbury''s Laws of England (Simond''s Edn., 1955). The law has undergone a change in England itself and this changed legal position has been noted in a Constitution Bench decision of this Court in Rupa Ashok Hurra v. Ashok Hurrah. Justice S.S.M. Quadri speaking for the Constitution Bench has quoted the following passage from Halsbury''s Laws of England, 4th Edn. (Reissue), Vol. 1(1):
Historically, prohibition was a writ whereby the royal courts of common law prohibited other courts from entertaining matters falling within the exclusive jurisdiction of the common law courts; certiorari was issued to bring the record of an inferior court into the King''s Bench for review or to remove indictments for trial in that court; mandamus was directed to inferior courts and tribunals, and to public officers and bodies, to order the performance of a public duty. All three were called prerogative writs;
Certiorari lies to bring decisions of an inferior court, tribunal, public authority or any other body of persons before the High Court for review so that the Court may determine whether they should be quashed, or to quash such decisions. The order of prohibition is an order issuing out of the High Court and directed to an inferior court or tribunal or public authority which forbids that court or tribunal or authority to act in excess of its jurisdiction or contrary to law. Both certiorari and prohibition are employed for the control of inferior courts, tribunals and public authorities.
Thus, there is no manner of doubt that the orders and proceedings of a judicial court subordinate to the High Court are amenable to writ jurisdiction of the High Court under Article 226 of the Constitution.
Upon a review of decided cases and a survey of the occasions, wherein the High Courts have exercised jurisdiction to command a writ of certiorari or to exercise supervisory jurisdiction under Article 227 in the given facts and circumstances in a variety of cases, it seems that the distinction between the two jurisdictions stands almost obliterated in 690 practice. Probably, this is the reason why it has become customary with the lawyers labelling their petitions as one common under Articles 226 and 227 of the Constitution, though such practice has been deprecated in some judicial pronouncement. Without entering into niceties and technicality of the subject, we venture to state the broad general difference between the two jurisdictions. Firstly, the writ of certiorari is an exercise of its original jurisdiction by the High Court; exercise of supervisory jurisdiction is not an original jurisdiction and in this sense it is akin to appellate, revisional or corrective jurisdiction. Secondly, in a writ of certiorari, the record of the proceedings having been certified and sent up by the inferior court or tribunal to the High Court, the High Court if inclined to exercise its jurisdiction, may simply annul or quash the proceedings and then do no more. In exercise of supervisory jurisdiction, the High Court may not only quash or set aside the impugned proceedings, judgment or order but it may also make such directions as the facts and circumstances of the case may warrant, maybe, by way of guiding the inferior court or tribunal as to the manner in which it would now proceed further or afresh as commended to or guided by the High Court. In appropriate cases the High Court, while exercising supervisory jurisdiction, may substitute such a decision of its own in place of the impugned decision, as the inferior court or tribunal should have made. Lastly, the jurisdiction under Article 226 of the Constitution is capable of being exercised on a prayer made by or on behalf of the party aggrieved; the supervisory jurisdiction is capable of being exercised suo motu as well.
Again in the case of Ramesh Chandra Sankla Etc. Vs. Vikram Cement Etc., ], the Supreme Court examined the nature of proceedings in following manner:-
"In our judgment, the learned counsel for the appellant is right in submitting that nomenclature of the proceeding or reference to a particular article of the Constitution is not final or conclusive. He is also right in submitting that an observation by a Single Judge as to how he had dealt with the matter is also not decisive. If it were so, a petition strictly falling under Article 226 simpliciter can be disposed of by a Single Judge observing that he is exercising power of superintendence under Article 227 of the Constitution. Can such statement by a Single Judge take away from the party aggrieved a right of appeal against the judgment if otherwise the petition is under Article 226 of the Constitution and subject to an intra-court/letters patent appeal? The reply unquestionably is in the negative (see Pepsi Foods Ltd. v. Spl. Judicial Magistrate 3).
In our considered opinion, however, on the facts and in the circumstances of the present case, the petitions instituted by the Company and decided by a Single Judge of the High Court could not be said to be original proceeding under Article 226 of the Constitution. We are clearly of the view that the learned Single Judge had decided the petitions in exercise of power of superintendence under Article 227 of the Constitution.
In the case of Ashok K. Jha and Others Vs. Garden Silk Mills and Another, the Supreme Court relying upon the decision in the case of Ramesh Chandra Sankla (supra), held in para 35 & 36 as under:-
"If the judgment under appeal falls squarely within four corners of Article 227, it goes without saying that intra-court appeal from such judgment would not be maintainable. On the other hand, if the petitioner has invoked the jurisdiction of the High Court for issuance of certain writ under ^600 Article 226, although Article 227 is also mentioned, and principally the judgment appealed against falls under Article 226, the appeal would be maintainable. What is important to be ascertained is the true nature of order passed by the Single Judge and not what provision he mentions while exercising such powers. We agree with the view of this Court in Ramesh Chandra Sankla that a statement by a learned Single Judge that he has exercised power under Article 227, cannot take away right of appeal against such judgment if power is otherwise found to have been exercised under Article 226. The vital factor for determination of maintainability of the intra-court appeal is the nature of jurisdiction invoked by the party and the true nature of principal order passed by the Single Judge.
Insofar as the present case is concerned, in the cause-title of the writ petition (special civil application), Articles 226 and 227 of the Constitution have been mentioned, A careful reading of the writ petition shows that the writ petition is not confined to supervisory jurisdiction of the High Court. The employer has invoked jurisdiction of the High Court by praying for a writ of certiorari. The prayer clause in the writ petition reads, "In view of the aforesaid premises Your Lordships may be pleased to issue a writ of certiorari or any other appropriate order...." The judgment of the Single Judge is, thus, traceable to Article 226. The statement made by the Single Judge in his order that no case for interference is made out under Article 227 of the Constitution is not decisive. Moreover, the Division Bench in its order observed, "though long-drawn arguments were advanced on the question of maintainability of this appeal, there really was not a serious contest on the question of maintainability of the appeal". For all these reasons, we hold that the letters patent appeal was maintainable from the order dated 1-10-2007 passed by the learned Single Judge. We answer Question (2) in affirmative.
On facts, it was found that in the cause title of the writ petition, indicated it to be treated as Article 226/227 of the Constitution of India, there was a prayer for issuance of writ of certiorari. It was further held that by praying for a writ of certiorari, jurisdiction under Article 226 was also invoked.
In a recent decision in the case of Shalini Shyam Shetty and Another Vs. Rajendra Shankar Patil, 9, the Supreme Court considered the distinction between Article 226 and 227. In that case, it was found that in the prayer clause, a writ of certiorari was prayed for and taking into consideration the label of the writ petition, pleadings, it was found to be a writ petition under Article 226 of the Constitution of India.
A Division Bench of this Court in the case of Suresh Gupta vs. Aditya Jain [Writ Appeal No. 70/2009, decided on 19.07.2010], held that though label of the writ petition showed that it was a petition under Article 226 as well as under Article 227 of the Constitution of India, the writ petition was not confined to supervisory jurisdiction of the High Court, as the writ appellant had invoked the jurisdiction of the High Court by praying for a writ of certiorari, and therefore the judgment of the learned Single Judge was traceable to Article 226 of the Constitution of India.
Applying the aforesaid principles laid down by the Supreme Court in several decisions dealing with the scope of Article 226/227 of the Constitution of India, distinction between the two provisions, while deciding the issue with regard to maintainability of writ appeal in the context of relevant provisions relating to writ appeals, examination of the pleadings, grounds urged in the writ petition and the relief sought in the present case, it leads to inevitable conclusion that the writ appellant in the writ petition sought to invoke not only supervisory jurisdiction, but also certiorari jurisdiction of the High Court, and therefore, the order passed by the learned Single Judge is also traceable to Article 226 of the Constitution of India. Consequently, the writ appeal would be maintainable. Accordingly, we overrule the office objection with regard to maintainability of writ appeal. It is held that the present writ appeal is maintainable. The Registry shall now list the appeal for further orders.