SAROJ @ VINITA Vs. SANTOSH KU. AGRAWAL

JUDGEMENT

(1.) 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.

(2.) 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.

(3.) 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.