REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  6418   OF 2008 (Arising out of SLP (C) NO. 17397 of 2007)

M/s. M.M.T.C. Limited …Appellant

Versus

Commissioner of Commercial Tax & Ors. …Respondents

J U D G M E N T  

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge in this appeal is to the judgment of a Division Bench of the

Madhya  Pradesh  High  Court  dismissing  the  writ  appeal  filed  by  the

appellant on the ground that it was not maintainable.  The appeal was filed

under  Section  2(1)  of  the  M.P.  Uchacha  Nyayalay (Khand Nyaypeth Ko

Appeal) Adhiniyam, 2005 (hereinafter referred to as the ‘Act’). It was held

that  the order  was passed in exercise of power of superintendence under

Article 227 of the Constitution of India, 1950 (in short the ‘Constitution’)

against which the Letters Patent Appeal is not maintainable.  The order of

learned Single  Judge  was passed  on  9.11.2005.   Against  the  said  order,

special  leave petition  was  filed  which was  disposed of  by this  Court  by

order dated 16.2.2006.  We shall refer to the text of the order later.  The

High Court  construed as if  this  Court  has only waived the limitation for

filing of Letters Patent Appeal and there was no direction to consider the

case on merits.

3. Learned  counsel  for  the  appellant  submitted  that  the  order  of  this

Court  is  very  clear  and  the  conclusions  of  the  High  Court  that  merely

limitation was waived is contrary to the clear terms of the earlier order of

this Court.  Additionally it is submitted that the prayer in the Writ Petition

was to quash the order passed by the Assistant Commissioner, Commercial

Tax.  That being so, the mere fact that the writ petition was styled under

Article 227 of the Constitution is of no consequence.  It is the nature of the

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relief sought for and the controversy involved which determines the Article

which is applicable.

4. Learned counsel for the respondent-State on the other hand supported

the impugned judgment of the High Court.

5. The  earlier  order  passed  by  this  Court  dated  22.8.2006  reads  as

follows:

“Heard.

Since the impugned order is passed by a learned Single  Judge.   The normal  remedy is  to  file  a  Letters Patent  Appeal.   Since  we  had  entertained  the  Special Leave Petition against the learned Single Judge’s order it would be appropriate to grant three weeks’ time to the petitioner to prefer the LPA which if otherwise free from defect  shall  be  entertained  for  being  considered  on merits. The  interim  order  passed  by  this  Court  shall continue for the aforesaid purpose.

The  Special  Leave  Petition  is  disposed  of accordingly.”

(Underlined for emphasis)

6. A bare reading of the order shows that the direction was to consider

the LPA on merits  and time was granted to prefer  the LPA within three

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weeks. The High Court was directed to dispose of the LPA on merits if it

was otherwise free from defect.  The High Court was, therefore, not justified

in holding that this Court’s earlier order only waived the limitation for filing

a  Letters  Patent  Appeal.   On that  score alone  the  High Court’s  order  is

unsustainable.   

7. In addition, the High Court seems to have gone by the nomenclature

gone by the nomenclature i.e. the discription given in the writ petition to be

one under Article 227 of the Constitution.  The High Court did not consider

the nature of the controversy and the prayer involved in the Writ petition.

As noted above the prayer was to quash the order of assessment passed by

the Assistant Commissioner, Commercial Tax levying purchase as well as

Entry Tax.

8. Section 2 of the Act reads as follows:

“2(1)  An  appeal  shall  lie  from  a  judgment  or  order passed by the 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 judges 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.”

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9. This Court in Hari Vishnu Kamath v. Syed Ahmad Ishaque and Ors.

(AIR 1955 SC 233) held that the High Court while issuing writ of certiorari

under  Article  226  of  the  Constitution  can  only  annul  a  decision  of  a

Tribunal whereas under Article 227 of the Constitution it can issue further

directions as well.  As noted above the prayer in the Writ Petition was to set

aside the decision of the assessing officer.

10. In Umaji Keshao Meshram v. Radhikabai [AIR 1986 SC 1272] it was

noted as follows:

“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 (AIR 1926 Bom 332), Raghunath Keshav Khadilkar v.  Poona  Municipality,(AIR  1945  Bom  7) Ryots  of Garabandho v.  Zemindar of Parlakimedi (AIR 1943 PC 164) and Moulvi Hamid Hasan Nomani v.  Banwarilal Roy [(1946-

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47) 74 Ind App 120,130-131]. 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  Maharaj [(1963) 1 SCR 1,16], CIT v. Ishwarlal Bhagwandas [AIR 1965 SC 1818], Ramesh v.  Seth Gendalal  Motilal Patni (1966 (3) SCR 198), Arbind Kumar Singh v. Nand Kishore Prasad[1968 (3) SCR 322] and  Ahmedabad Mfg. & Calico Ptg. Co. Ltd. v. Ram Tahel Ramnand (AIR 1972 SC 1598).”

11. In para 106, it was noted as follows:

“106. The  non  obstante  clause  in  Rule  18,  namely, “Notwithstanding anything contained in Rules 1, 4 and 17 of this chapter”, makes it abundantly clear why that rule uses the words “finally disposed of”. As seen above, under Rules 1 and 17, applications under Articles 226 and 227 are required to be heard and disposed of by a Division Bench. Rule 4, however, gives  power  to  a  Single  Judge  to  issue  rule  nisi  on  an application under Article 226 but precludes him from passing any final order on such application. It is because a Single Judge has no power under Rules 1, 4 and 17 to hear and dispose of a petition under Article 226 or 227 that the non obstante clause

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has been introduced in Rule 18. The use of the words “be heard and finally disposed of by a Single Judge” in Rule 18 merely clarifies the position that in such cases the power of the Single Judge is not confined merely to issuing a rule nisi. These words were  not  intended  to  bar  a  right  of  appeal.  To  say  that  the words “finally disposed of” mean finally disposed of so far as the High Court is concerned is illogical because Rules 1, 4 and 7  use  the  words  “be heard  and  disposed  of  by a  Divisional Bench” and were the reasoning of  the Full  Bench correct,  it would mean that so far as the High Court is concerned, when a Single  Judge  hears  a  matter  and  disposes  it  of,  it  is  finally disposed of and when a Division Bench disposes it of, it is not finally disposed of. The right of appeal against the judgment of a Single Judge is given by the Letters Patent which have been continued in force by Article 225 of the Constitution. If under the Rules of the High Court, a matter is heard and disposed of by a Single Judge, an appeal lies against his judgment unless it is  barred  either  under  the  Letters  Patent  or  some  other enactment. The word “finally” used in Rule 18 of Chapter XVII of the Appellate Side Rules does not and cannot possibly have the effect of barring a right of appeal conferred by the Letters Patent.  As we have seen above,  an intra-court  appeal against the judgment of a Single Judge in a petition under Article 226 is not barred while clause 15 itself bars an intra-court appeal against  the  judgment  of  a  Single  Judge  in  a  petition  under Article 227.”

12. In  Sushilabai  Laxminarayan  Mudliyar v.  Nihalchand  Waghajibhai

Shaha [1993 Supp. (1) SCC 11] this court with reference to an unreported

judgment in  Ratnagiri  District  Central  Co-operative  Bank Ltd.  v.  Dinkar

Kashinath  Watve, C.A.  No.  520  of  1989  decided  on  27.1.1989  held  as

follows:

“Even  when  in  the  cause  title  of  an  application both Article 226 and Article 227 of the Constitution have been mentioned, the learned single Judge is at liberty to

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decide,  according  to  facts  of  each  particular  case, whether the said application ought to be dealt with only under Article 226 of the Constitution.  For determining the question of maintainability of an appeal against such a judgment of the Single Judge the Division bench has to find  out  whether  in  substance  the  judgment  has  been passed  by  the  learned  Single  Judge  in  exercise  of  the jurisdiction under Article 226 of the Constitution.  In the event  in passing his judgment on an application which had mentioned in  its  cause  title  both  Articles  226 and 227,  the  Single  Judge  has  in  fact  invoked  only  his supervisory powers under Article 227, the appeal under clause 15 would not  lie.   The clause 15 of the Letters Patent  expressly  bars  appeals  against  orders  of  Single Judges  passed  under  revisional  or  supervisory powers. Even  when the  learned  Single  Judge’s  order  has  been passed  under  both  the  articles,  for  deciding  the maintainability  against  such  an  order  what  would  be relevant  is  the  principal  or  main  relief  granted  by  the judgment  passed  by learned  Single  Judge  and  not  the ancillary  directions  given  by  him.   The  expression ‘ancillary’  means,  in  the  context,  incidental  or consequential to the main part of the order.

Thus, the determining factor is the real nature of principal  order  passed  by  the  Single  Judge  which  is appealed against and neither the mentioning in the cause title  of  the  application  of  both  the  articles  nor  the granting of ancillary orders thereupon made by learned Single Judge would be relevant.  Thus, in each case, the Division  Bench  may  consider  the  substance  of  the judgment under appeal  to  ascertain  whether  the Single Judge has mainly or principally exercised in the matter his jurisdiction under Article 226 or under Article 227. In the  event  in  his  judgment  the  learned  Single  Judge himself  had  mentioned  the  particular  article  of  the Constitution under which he was passing his judgment, in an appeal under clause 15 against such a judgment it may  not  be  necessary  for  the  appellate  bench  to elaborately examine the question of  its  maintainability.

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When  without  mentioning  the  particular  article  the learned Single Judge decided on merits the application, in order to decide the question of maintainability of an appeal,  against  such  a  judgment,  the  Division  Bench might examine the relief granted by the learned Single Judge, for maintainability of an appeal, the determination would be the main and not the ancillary relief.  When a combined application under Articles 226 and 227 of the Constitution is summarily dismissed without reasons, the appeal  Court  may  consider  whether  the  facts  alleged, warranted filing of the application under Article 226 or under Article 227 of the Constitution.”

13. Thereafter  this  Court  explained  the  ratio  laid  down in  the  case  of

Umaji’s case (supra) and expressed thus:

“…In Umaji case it was clearly held 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 of justice to party and in order not to deprive him of 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.   Rule 18 of the Bombay  High  Court  Appellate  Side  Rules  read  with clause 15 of the Letters Patent provides for appeal to the Division Bench of the High Court  from a judgment of the learned Single Judge passed on a writ petition under Article 226 of the Constitution.  In the present case the Division  Bench  was clearly wrong in  holding  that  the appeal  was  not  maintainable  against  the  order  of  the

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learned Single Judge.”

14. In  Mangalbhai  & Ors. v.  Radhyshyam (Dr.) [AIR 1993 SC 806] it

was inter alia observed as follows:

“The learned Single Judge in his impugned judgment dated December 11, 1987 nowhere mentioned that he was exercising the powers  under Article 227 of the Constitution.  The learned Single  Judge  examined  the  matter  on  merit  and  set  aside  the orders  of  the  Rent  Controller  as  well  as  the  Resident  Deputy Collector  on  the  ground  that  the  aforesaid  judgments  were perverse.  The  findings  of  the  Rent  Controller  and  Resident Deputy  Collector  were  set  aside  on  the  question  of  habitual defaulter as well as on the ground of bona fide need. Thus in the totality of the facts and circumstances of the case, the pleadings of the parties in the writ petition and the judgment of the learned Single  Judge  leaves  no  manner  of  doubt  that  it  was  an  order passed under Article 226 of the Constitution and in that view of the matter the Letters Patent Appeal was maintainable before the High Court. After taking the aforesaid view one course open was to set aside the order of the Division Bench and to remand the matter for being disposed of on merits by the Division Bench of the  High  Court.  However,  taking  in  view  the  fact  that  this litigation is going on for nearly a decade and also the fact that even  the  learned  Single  Judge  in  his  impugned  order  dated December  11,  1987  had  remanded  the  case  to  the  Rent Controller, we considered it  proper in the interest of justice to hear the appeal  on merits  against  the  judgment  of the  learned Single Judge. We have heard learned counsel for the parties at length on the merits of the case.”

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15. In Lokmat Newspapers (P) Ltd. v. Shankarprasad [1999 (6) SCC 275]

it was observed as follows:

“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  learned  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. In this connection, it is profitable to have a look at the  decision  of  this  Court  in  the  case  of  Umaji  Keshao Meshram v. Radhikabai [1986 Supp.SCC 401]. In that case O. Chinnappa  Reddy and  D.P.  Madon,  JJ.,  considered  the  very same question in the light of clause 15 of the Letters Patent of the Bombay High Court. Madon, J., speaking for the Court in para 107 of the Report at p. 473,  made  the  following pertinent observations: (SCC p. 473, para 107)

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“107. Petitions are at times filed both under Articles 226 and 227 of  the Constitution.  The case  of  Hari  Vishnu Kamath v.  Syed  Ahmad  Ishaque  (AIR  1955  SC  233) 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 (AIR 1957 All 414) and by the Punjab High Court in Raj Kishan Jain v. Tulsi Dass (AIR  1959  Punj  291) and  Barham  Dutt v.  Peoples’ Coop. Transport Society Ltd. (AIR 1961 Punj 24) and we are in agreement with it.”

The aforesaid decision squarely gets attracted on the facts of the present case. 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

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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.”

16.  In Surya Dev Rai v. Ram Chander Rai & Ors. [AIR 2003 SC 3044]

after referring to decisions in Custodian of Evacuee Property, Bangalore v.

Khan Saheb Abdul Shukoor, etc. [1961 (3) SCR 855] and  Nagendra Nath

Bora & Anr. v.  Commissioner of Hills Division [AIR 1958 SC 398],  T.C.

Basappa v.  T.  Nagappa [AIR  1954  SC 440]  and  Rupa  Ashok  Hurra v.

Ashok Hurra [AIR 2002 SC 1771], this Court held at paragraphs 17, 19 &

25 as follows:

“17. From the aforesaid enunciation of law it is quite vivid and luminescent that the pleadings in the writ petition, nature of the order passed by the learned Single Judge, character and the contour of the order, directions issued, nomenclature given the jurisdictional prospective in the constitutional context are to be perceived.  It cannot be said in a hypertechnical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Court has to be treated all the time for all purposes to be under Article 227 of the Constitution of India.  Phraseology used in exercise

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of original jurisdiction under Article 226 of the Constitution in Section  2  of  the  Act  cannot  be  given  a  restricted  and constricted meaning because an order passed in a writ petition can tantamount to an order under Article 226  or 227 of the Constitution of India and  it would depend upon the real nature of the order passed by the learned Single Judge. To elaborate; whether the learned Single Judge has exercised his jurisdiction under Article 226 or under Article 227 or both would depend upon various aspects and many a facet as has been emphasized in the afore quoted decisions of the apex Court.  The pleadings, as  has  been  indicated  hereinabove,  also  assume  immense significance. As has been held in the case of Surya Devi Rai (supra)  a writ of certiorari can be issued under Article 226 of the  Constitution  against  an  order  of  a  Tribunal  or  an  order passed by the sub ordinate court.  In quintessentiality, it cannot be put in a state jacket formula that any order of the learned judge that deals with an order arising from an inferior  tribunal or the sub ordinate court is an order under Article 227 of the Constitution of India and not an order under Article 226 of the Constitution.  It  would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of  the Constitution  in  a composite  manner  and they can coincide, co-exit, overlap imbricate.  In this context it is apt to note that there may be cases where the learned single judge may feel disposed or inclined to issue a writ to do full and  complete  justice  because  it  is  to  be  borne  in  mind  that Article 226 of the Constitutions is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of the case.

19. 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.

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25. 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 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.”

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17. In view of what has been stated above, the High Court was not

justified  in  holding  that  the  Letters  Patent  Appeal  was  not

maintainable.   In addition,  a bare reading of this Court’s earlier

order  shows  that  the  impugned  order  is  clearly  erroneous.  The

impugned order is set aside.  The writ appeal shall be heard by the

Division Bench on merits.

18. The appeal is allowed.

…………………………….J. (Dr. ARIJIT PASAYAT)

……………………………J. (P. SATHASIVAM)

……………………………J. (AFTAB ALAM)

New Delhi, November 3, 2008      

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