JAIDEV SINDDHA Vs. JAIPRAKASH SIDDHA

JUDGEMENT

(1.) PERCEIVING two conflicting views, one expressed in Smt. Shiva Dubey (Jheera) v. Sumit Ranjan Dubey (Jheera) (W. A. No. 310/06): 2006 (4) MPHT 420 Lakhan Lal Sonkar v. Gun Carriage Factory, 2007 (1) MPHT 335 and State of M. P. v. M/s. Wakankar, (2007)1 MPLJ 99 and the other in M/s. Ram and co. v. State of M. P. (W. A. 342/06) : (2007 (3) MPHT 325) pertaining to the maintainability of writ appeal under the provision of the M. P. Uchch Nyayalaya (Khand Nyaypeeth ko Appeal) Adhiniyam, 2005 (for brevity 'the act') the Division Bench referred the matter to the larger bench to put the controversy to rest and further to have the certitude in the field on certain parameters. Be it placed on record that the cavil relates to the bar provided under the proviso to sub-section (1) to Section 2 of the Act as regards the entertainability and acceptability of an appeal from an order passed under Article 227 of the Constitution of India. In this factual backdrop the matter has been placed before us.

(2.) AT the outset it is condign to mention that there is no necessity for advertence to the facts since the only question that has spiralled for delineation is when the Act by way of incorporation of the proviso to section 2 of the Act creates a bar for entertaining an appeal from an order passed under article 227 of the Constitution, and further there is employment of the expression "in exercise of original jurisdiction" in the main part of the said Section whether the appeal has to be restricted to an order passed under Article 226 of the Constitution exclusively.

(3.) MR. R. S. Jaiswal, learned senior counsel appearing for the appellant has submitted that the law laid down in the cases of smt. Shiva Dubey (supra) (2006 (4) MPHT 420) and Lakhan Lal Sonkar (2007 (1) MPHT 335) (supra) is absolutely correct inasmuch as the said decisions are in consonance with the view expressed by the Apex Court in many a judgment. It is urged by him that the phraseology used 'in exercise of its original jurisdiction' cannot be interpreted in isolation to convey and mean only an order under Article 226 of the Constitution in the sense that the order under challenge is not from the inferior forums or tribunals in exercise of supervisory jurisdiction. It is his submission that the pleadings as a whole in the writ petition are to be scrutinised and the nature and various aspects of the order passed by the learned single Judge are to be scanned to find out whether it is an order under Article 226 or under Article 227 of the Constitution for there cannot be a straight jacket formula or a mechanical process to treat an order passed by a learned single Judge to be one under Article 226 or 227 of the Constitution as there can be overlapping and interlinking.