MANOJ KUMAR Vs. BOARD OF REVENUE

JUDGEMENT

(1.) (For himself and on behalf of Hon'ble the Chief Justice, Abhay Gohil and S. K. Gangele, JJ.) - INTRODUCTORY BACKDROP Questioning the assailability and substantiality of the order passed by the learned single Judge in Writ Petition No. 5731/2006 the present writ appeal was preferred under S.2 of the M.P. Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005, (for short 'the 2005 Adhiniyam'). When the same was placed before a Division Bench for the purpose of admission on 20-8-2007 the Bench hearing the appeal took note of the decision rendered in the case of Rama and Company v. State of Madhya Pradesh, 2007 (II) MPJR 229, wherein a view was expressed to the effect that an order passed by the learned single Judge while dealing with the sustainability of the order passed by the Board of Revenue is delineation under supervisory jurisdiction under Art.226 or 227 of the Constitution of India and not in exercise of original jurisdiction under Art.226 of the Constitution and the dictum propounded in Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007 (2) MPJR (FB) 361 : 2007 (3) MPLJ 595, AIR 2007 MP 269, whereby the view expressed in Rama and Co. (supra) was overruled, and further noticed the order passed by the Apex Court in the Special Leave Petition affirming the order passed in Rama and Co. (supra) and directed the matter to be listed on 23-8-2007. Thereafter the Division Bench hearing the appeal on admission on the subsequent date thought it condign and seemly to refer the matter to a larger Bench regard being had to the far reaching effect and impact of the controversy involved because of the order passed by the Apex Court in the Special Leave Petition and the effect of the Full Bench decision in the said context. That is how the matter has travelled to the larger Bench to be dwelled upon with regard to the scope of maintainability of the Writ Appeal under the 2005 Adhiniyam.

(2.) PRELUDE IN PARTICULARITY M. P. Uchcha Nyayalaya (Letters Patent Appeals Samapti) Adhiniyam, 1981 was passed by the State Legislature which received assent of the President on 21-6-1981. In Balkrishna Das v. Perfect Pottery Co. Ltd. Jabalpur, AIR 1985 MP 42 (FB) 1981 Adhiniyam was declared ultra vires and it was further held that the said Act does not extinguish the right of appeal under Clause 10 of the Letters Patent. The decision rendered in the case of Balkrishna Das (supra) and other decisions from the Bombay High Court travelled to the Apex Court. The Constitution Bench of the Apex Court in Jamshed N. Gazdar v. State of Maharashtra etc., AIR 2005 SC 862, upheld the validity of 1981 Adhiniyam.

(3.) KEEPING in view the language employed under the 2005 Adhiniyam in Lakhan Lal Sonkar v. Gun Carriage Factory, 2007 (1) MPHT 335 wherein the legal propriety of the order passed by the learned single Judge in a writ petition arising out of the award passed by the Labour Court was called in question, an objection was raised with regard to the maintainability of the appeal on the foundation that the order passed by the learned single Judge is one under Art.227 of the Constitution of India. The Division Bench of this Court repelled the stand and opined that the law is now well settled by the Apex Court that where the learned single Judge does not mention the provision under which the order has been passed and from the pleadings in the writ petition and the reliefs claimed in the writ petition, the Court can infer that the same is not only under Art.227 but also under Art.226 of the Constitution of India.