IN THE  SUPREME COURT OF INDIA                 CIVIL  APPELLATE  JURISDICTION                                     CIVIL APPEAL NOS. 1133-1134 OF 2009   

(Arising out of SLP(C) Nos. 1015-1016/2008)   

State of M.P. & Ors. ..   Appellant(s)                   

  Versus

M/s Gaylord Chemicals ..   Respondent(s)                                                           O R D E R

Delay condoned.

Leave granted.

Both these appeals arise out of order dated March 14, 2007, passed by the

High Court of Madhya Pradesh, Bench at Indore in Writ Appeal No. 180 of 2007,

whereby  the appellate Bench has dismissed the intra-Court appeal preferred by the

appellants  before  us  under  the  Madhya  Pradesh  Uchha  Nayayalaya  (Khand

Nyaupith  Ko  Appeal)  Adhiniyam,  2005  (for  short  the  Adhiniyam)  as  not

maintainable.  The said appeal had been filed by the appellants against order dated

5th July, 2005, passed by a learned Single Judge of the High Court.  The Division

Bench held that the order impugned in the appeal was, in substance, passed by the

learned  Single  Judge  in  exercise  of  his  jurisdiction   under  Article  227  of  the

Constitution and therefore, in terms of proviso to Section 2 of the Adhiniyam,  intra-

Court appeal was specifically barred.

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We have heard learned counsel for the parties. We have also perused the

writ petition filed by the appellants in the  High Court.  We are of the view that the

Division bench was not justified in dismissing the appeal on the stated ground.  It  is

evident from the body of the writ petition that the writ petitioner had invoked the

jurisdiction of the High Court both under Articles 226 and 227 of the Constitution,

seeking issuance of an appropriate Writ of Certiorari, quashing the orders passed by

the sub-divisional officer-cum-competent authority and the Revenue Commissioner

under the M.P. Lok Parisar (Bedakhali) Adhiniyam, 1974.  The learned Single Judge

allowed  the  writ  petition  and  set  aside  both  the  orders  with  certain  directions.

Moreover, the grounds taken in the writ petition go to show that primarily it was a

petition under Article 226 of the Constitution and the order passed by the Single

Judge was also under the said Article.

A Similar controversy, with reference to clause 15 of the Letters Patent of

the Bombay High Court, came up for consideration of this Court in  Umaji Keshao

Meshram & Ors. vs. Radhikabai, Widow of Anandrao Banapurkar & Anr.- (1986)

suppl. SCC 401.  In that case, it was held that where the  

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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 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 of the Constitution.

The ratio of the said decision squarely applies on facts in hand.  As noted

earlier, the writ petition   had been filed in the High court both under Articles 226

and 227 of the Constitution.  Once, the writ petition was entertained and allowed on

merits,  it  cannot be said that  the Single Judge had exercised his jurisdiction only

under Article 227, as held by the Division Bench.

For all these reasons, we are of the opinion that the Division Bench erred in

holding that  the  appeal  was not  maintainable against  order dated 5th  July 2005,

passed by the  

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learned Single Judge.  Consequently, we set aside the impugned order and remand

the appeal preferred by the appellants herein to the Division Bench for its decision on

merits.  We may note that although in the impugned order, it is mentioned that the

appeal  is  barred  by  limitation  but  no  final  decision  on  the  application  seeking

condonation of delay, filed along with the writ appeal, seems to have been taken.   It

will be open to the Division Bench to pass appropriate orders on the said application.

In view of the fact that matter is quite old, we would request the High Court

to decide the appeal as expeditiously as practicable.

The appeals are allowed in the above terms with no order as to costs.

                                       ...................J.            [ D.K. JAIN ]  

                                       ...................J.                                     [ R.M. LODHA ]                         

   NEW DELHI, FEBRUARY 20, 2009.