TaxTMI 
TaxTMI 
2008 (11) TMI 373
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....ndia, 1950 (in short, "the Constitution") against which the Letters Patent appeal is not maintainable. The order of the learned single judge was passed on November 9, 2005. Against the said order, special leave petition was filed which was disposed of by this court by order dated February 16, 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 a Letters Patent appeal and there was no direction to consider the case on the merits. 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 are 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 relief sought for and the controversy involved which determines the article which is applicable. Learned counsel for the respondent-State, on the other hand, s....
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....n was to set aside the decision of the assessing officer. In Umaji Keshao Meshram v. Radhikabai (Smt.) 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 [(1946-47) 74 Ind App 120, 130-131]. In the last mentione....
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....cerned is illogical because rules 1, 4 and 17 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." In Sushilabai Laxminaray....
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....uch a judgment it may not be necessary for the appellate Bench to elaborately examine the question of its maintainability. When without mentioning the particular article the learned single judge decided on merits of 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. When more than one relief are 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." Thereafter this court explained the ratio laid down in the case of Umaji's case AIR 1986 SC 1272 and expressed thus: ". . . In Umaji case AIR 1986 SC 1272 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 th....
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....ainst the judgment of the learned single judge. We have heard learned counsel for the parties at length on the merits of the case." 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 ....
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....R 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 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 ....
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....at any order of the learned judge that deals with an order arising from an inferior Tribunal or the subordinate 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-exist, overlap or 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 Constitution 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. . . . 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....