Holding

A Letters Patent Appeal is maintainable against a judgment of a Single Judge of a High Court even when that judgment is rendered in exercise of supervisory jurisdiction under Article 227, provided the order is not merely interlocutory and the Supreme Court’s direction was to consider the appeal on its merits.

Summary

M.M.T.C. Limited appealed to the Supreme Court against a judgment of a Single Judge of the Madhya Pradesh High Court who had exercised supervisory jurisdiction under Article 227 of the Constitution. The issue was whether a Letters Patent Appeal (LPA) could be filed against such an order, especially after the Supreme Court had earlier directed that the LPA be entertained on its merits and time was granted to file it. The Court held that the earlier direction was not merely a waiver of limitation but an instruction to consider the appeal on merits, making the LPA maintainable. It clarified that the distinction between Articles 226 and 227 is often blurred, but an appeal under the Letters Patent is permissible even when the original order stems from supervisory jurisdiction, provided the order is not interlocutory. Consequently, the High Court’s finding that the LPA was not maintainable was set aside and the writ appeal was ordered to be heard by a Division Bench on merits.

Issues considered

Whether a Letters Patent Appeal is maintainable against a judgment/order passed by a Single Judge of a High Court exercising supervisory jurisdiction under Article 227.
Whether the Supreme Court’s order dated 22‑08‑2006 merely waived the limitation for filing an LPA or directed that the appeal be heard on its merits.
Interpretation of Section 2(1) of the Madhya Pradesh Uchacha Nyayalay (Khand Nyaypeth Ko Appeal) Adhiniyam, 2005 with respect to appeals against orders passed under Article 227.
How the nature of the relief sought (quashing a tax assessment) influences the applicability of Articles 226 and 227 for maintainability of an appeal.

Subjects

Letters Patent AppealArticle 227Article 226Supervisory jurisdictionHigh CourtMaintainabilityMadhya Pradesh ActWrit appealConstitutional law

Judgment

[2CJ08] 15 S.C.R. 170
~·'
A MIS. M.M.T.C. LIMITED
v.
COMMISSIONER OF COMMERCIAL TAX & ORS.
(Civil Appeal No. 6418 of 2008)
NOVEMBER 3, 2008
B
[DR. ARIJIT PASAYAT, P. SATHASIVAM AND
AFTAB ALAM, JJ.] -...,.

Constitution of India, 1950; Articles 226 and 227:
c
Letters Patent.Appeal againstorder of Single Judge of
the High Court in exercise· of power of superintendence under
Article 227 of the Constitution - Maintainability of - Held: In
exercise of supervisory jurisdiction, the High Court may not
D only set aside/quash the impugned judgment/order/
proceeding but could also make such directions as the 'facts /
and circumstances of the case warrants - High Court erred
in holding that Letters Patent Appeal not maintainable - M.P.
Uchacha Nyayalay (Khand Nyaypeth Ko Appeal) Adhiniyam,
2005 - S.2(1).
E
Articles 226 and 227 of the Constitution - Scope of -
Discussed.

The question which arose for determination in this )r-
F appeal was as to whether the Letters Patent Appeal is
maintainable against the order passed by the Single
Judge of the High Court in exercise of power of
superintendence under Article 227 of the Constitution of
India.
G Allowing the appeal, the Court

HELD: 1.1. A bare reading of the order dated -
22.8.2006 of this Court in the earlier round of litigation
shows that the direction was to consider the Letters
H 170
M.M.T.C. LIMITED v. COMMISSIONER OF COMMERCIAL 171
TAX & ORS.
)--- Patent Appeal (LPA) on merits and time was granted to A
prefer the LPA within the stipulated time. The High Court
was directed to dispose of the LPA on merits if it was
otherwise free from defect. The High Court was,
therefore, not justified in holding that this Court's earlier
order only waived the limitation for filing a Letters Patent B
Appeal. On that score alone the High Court's order is
unsustainable. [Para 6] [175a0-E]
:.r-
1.2. The High Court seems to have gone by the
nomenclature i.e. the description given in the writ petition
to be one under Article 227 of the Constitution. The High
c
Court did not consider the nature of the controversy and
the prayer involved in the Writ Petition. [Para 7] [175-F]

1.3. This Court in the case of Hari Vishnu Karnath v.
Syed Ahmad /shaque and Ors. held that the High Court D
~
while issuing writ of certiorari under Article 226 of the
Constitution can only annul a decision of a Tribunal
whereas under Article 227 of the Constitution it can issue
further directions as well. [Para 9] (176-8-C]
E
Hari Vishnu Karnath v. Syed Ahmad lshaque and Ors.,
AIR (1955) SC 233, relied on.

2.1. The distinction between the two jurisdictions,
- namely, jurisdiction exercised by High Court to command
--.(
a writ of certiorari and supervisory jurisdiction exercised F
by High Courts under Article 227 of the Constitution
stands almost obliterated in practice. Probably, this is the
reason why it has become customary with the lawyers
labelling their petitions as one common under Articles
226 and 227 of the Constitution, though such practice has G
been deprecated in some judicial pronouncement.
~ Without entering into niceties and technicality of the
subject, it is stated that the broad general difference
between the two jurisdictions. The writ of certiorari is an
exercise of its original jurisdiction by the High Court; H
"172 SUPREME COURT REPORTS [2008] 15 S.C.R.

A exercise of supervisory jurisdiction is not an original
jurisdiction and in this isense it is akin to appellate,
revisional or corrective jurisdiction. In a writ of certiorari,
the record of the proceec;tings having been certified and
sent up by the inferior court or tribunal to the High Court,
B the High Court if inclined to exercise its jurisdiction, may
simply annul or quash the proceedings and then do no
more. In exercise of supervisory jurisdiction, the High ...,.
Court may not only quash or set aside the impugned
proceedings, judgment 'or order but it may also make
c such directions as the facts and circumstances of the
case may warrant, maybe, by way of guiding the inferior
court or tribunal as to the manner in which it would now
proceed further or afresh as commended to or guided by
the High Court. In appropriate cases the High Court, while
.o .exercising supervisory jurisdiction, may substitute such
a decision of its own in place of the impugned decision, ·
as the inferior court or tribunal should have made. Lastly,
the jurisdiction under Article 226 of the Constitution is
capable of being exercised on a prayer made by or on
behalf of the party a,ggrieved; the supervisory jurisdiction
E is capable of being exercised suo motu as well." In view
I •
of what has been stated above, the High Court was not
justified in holding that the Letters Patent Appeal was not
maintainable. In addition, a bare reading of this Court's
earlier order shows that the impugned order is clearly
F · erroneous. [Paras 16 and 17] (186-C-H; 187-A-D]
I •

Umaji Keshao Meshram v. Radhikabai, AIR (1986) SC
1272; Sushilabai Laxmfnarayan Mudliyar v. Nihalchand .
Waghajibhai Shaha (1993] Supp. 1 SCC 11; Ratnagiri
G District Central Co-operative Bank Ltd. v. Dinkar Kashinath
Watve, C.A. No. 520 of 1989 decided by S.C. on 27 .1.1989;
Manga/bhai & Ors. v. Radhyshyam (Dr.) AIR (1993) SC 806;
Lokmat Newspapers (P) Ltd. v. Shankarprasad, (1999] 6 SCC
275; Surya Dev Rai v. Ram Chander Rai & Ors., (1999] 6
H SCC 275; Custodian of Evacuee Property, Bangalore v. Khan
M.M.T.C. LIMITED v. COMMISSIONER OF COMMERCIAL 173
( TAX & ORS.
j~
Saheb Abdul Shukoor, etc., (1961) 3 SCR 855; Nagendra A
Nath Bora & Anr. v. Commissioner of Hills Division, AIR
(1958) SC 398; T.C. Basappa v. T. Nagappa, AIR (1954) SC
440 and Rupa Ashok Hurra v. Ashok Hurra, AIR (2002) SC
1771, relied on.
B
2.2. The writ appeal shall be heard by the Division
Bench on merits. ~Para 17] [187-C-D]

Case Law Reference :
AIR (1955) SC 233 relied on Para 9 c
AIR (1986) SC 1272 relied on Para 10
[1993] supp. 1 sec 11 relied on Para 12
AIR (1993) SC 806 relied on Para 14
D·
[1999] s sec 215 relied·on Para 15
[1961] 3 SCR 855 relied on Para 16
AIR (1958) SC 398 relied on Para 16
E
AIR (1954) SC 440 relied on Para 16
AIR (2002) SC 1771 relied on Para 16

CIVIL APPELLATE JURISDICTION : Civil Appeal No.
~
6418 of 2008.
F
-.
From the final Judgment and Order dated 16.7.2007 of the
High Court of Madhya Pradesh, Bench at Indore in Writ Appeal
No. 245 of 2006.

T.S. Doabia, Jaswant Persoya, Manpreet Singh Doabia G
and Jagjit Singh Chhabra for the Appellant.

Vikrant Singh Bais and B.S. Banthia for the Respondents.

The Judgment of the Court was delivered by
H
174 SUPREME COURT REPORTS [2008] 15 S.C.R.

A . DR. ARIJIT PASAVAT, J. 1. Leave grcmted.

2. Challenge in this appeal is to the judgment of a Division .
Bench of the Madhya Pradesh High Court dismissing the writ
appeal filed by the appellant on the ground that it was not ,,'
maintainable. The appeal was filed under Section 2(1) of the
6
M.P. Uchacha Nyayalay (Khand Nyaypeth Ko Appeal)
Adhiniyam, 2005 (hereinafter referred to as the 'Act'). It was
held that the order was passed in exercise of power of
superintendence under Article 227 of the Constitution of India,
1950 (in short the 'Constitution') against which the Letters
C Patent Appeal is not maintainable .. The drder of learned Single
Judge was passed on 9.11.2005. Against the said order, . ·
special leave petition was filed wt)ich was disposed of by this
Court by order dated 16.2.2006. We shall refer to the text of
the order later. The High Court construed as if this Court has
D only waived the limitation for filing.of Le~ers Patent Appeal and
there was no direction to consider the case on merits.

3. Learned counsel for the appellant submitted that the
order of this Court is very clear and the conclusions of the High
E Court that merely limitation was waived is contrary to the clear .1
terms of the earlier order of this Court. Additionally it is
submitted that the prayer in the Writ Petition was to qu~sh the ·~

l
order passed by the Assistant Cbmmissioner, Commercial Tax.
That being so, the mere fact that the writ petition was styled
F under Article 227 of the Constitution is of no consequence. It
is the nature of the relief sought for and the controversy involved
wtiich deterrriines·the Article which is applicable.

4. Learned counsel for the respondent-State on the other
hand supported the impugne~judgment of the High Court...
G
5. The earlier order passed by this Court dated 22.8.2006
reads as follows:

"Heard.
H
M.M.T.C. LIMITED v. COMMISSIONER OF COMMERCIAL 175
TAX & ORS. [DR. ARIJIT PASAYAT, J.]

Since the impugned order is passed by a learnE3d A
Single Judge. The normal remedy is to file a Letters Patent ·
Appeal. Since we had entertained the Special Leave ·
Petition against the learned Single Judge's order it would .
be appropriate to grant three weeks' time to the petitioner
to prefer the LPA which if otherwise free from defect shall 8
be entertained for being considered on merits. The interim '
order passed by this Court shall continue for the aforesaid
purpose.

The Special Leave Petition is disposed of C
accordingly."

(Underlined for emphasis)

6. A bare reading of the order shows that the direction was·
to consider the LPA on merits and time was granted to prefer o
~ ).... the LPA within three weeks. The High Court was directed to.
dispose of the LPA on merits if it was otherwise free from defect.
The High Court was, therefore, not justified in holding that this'
Court's earlier order only waived the limitation for filing a Letters'
Patent Appeal. On that score alone the High Court's order is E
unsustainable.

7. In addition, the High Court seems to have gone by the
nomenclature gone by the nomenclature i.e. the description
given in the writ petition to be one under Article 227 of the
Constitution. The High Court did not consider the nature of th~ F
controversy and the prayer involved in the Writ petition. As
noted above the prayer was to quash the order of assessment
passed by the Assistant Commissioner, Commercial Tax
levying purchase as well as Entry Tax.
G
8. Section 2 o·f the Act reads as follows:

"2(1) An appeal shall lie from a judgment or order passed
by the one Judge of the High Court in exercise of original
jurisdiction under Article 226 of the Constitution of India, H
to a Division bench comprising of two judges of the same
176 SUPREME COURT REPORTS
' >
[2008] 15 S.C.R.
,,_-,..
A High Court. ..----

Provided that no such appeal shall lie against an
interlocutory order or against an order passed in exercise
of supervisory jurisdiction under Article 227 of the
Constitution of India."
B
9. This Court in Hari Vishnu Karnath v. Syed Ahmad
"i
lshaque and Ors., (AIR 1955 SC 233) held that the High Court
while issuing writ of certiorari under Article 226 of the
Constitution can only annul a decision of a Tribunal whereas
c under Article 227 of the Constitution it can issue further
directions as well. As noted above the prayer in the Writ Petition
was to set aside the decision of the assessing officer.

10. In Umaji Keshao Meshram v. Radhikabai, AIR (1986)
D 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 nec~ssary
E 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 df ascertaining whether in
giving such judgment or order that subordinate court or ;.- II

F
tribunal has acted within its authority and according to law. · Ir
Prior to the commencement of the Constitution, the
Chartered High Courts as also th~ 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. lsmailji Abdulali,
G (AIR 1926 Born 332), Raghunath Keshav Khadilkar v.
Poona Municipality, (AIR 1945 Born 7) Ryots of r-
Garabandho v. Zemindar of Parlakimedi (AIR 1943 PC
164) and Mou/vi Hamid Hasan Nomani v. Banwarilal Roy
[(1946-47) 74 Ind App 120,130-131). In the last
H mentioned case which dealt with the nature of a writ of quo
M.M.T.C. LIMITED v. COMMISSIONER OF COMMERCIAL 177
TAX & ORS. [DR. ARIJIT PASAYAT, J.]
.........
warranto, the Judicial Committee held: A

"In Their Lordships' opinion any original civil
jurisdiction possessed by the High Court and not
in express terms conferred by the Letters Patent or
later enactments falls within the description of 8
ordinary original civil jurisdiction."

By Article 226 the power of issuing prerogative writs
possessed by the Chartered High Courts prior to the
commencement of the Constitution has been made wider
and more extensive and conferred upon every High Court. c
The nature of the exercise of the power under Article 226,
however, remains the same as in the case of the power
of issuing prerogative writs possessed by the Chartered
High Courts. A series of decisions of this Court has firmly
established that a proceeding under Article 226 is an D
) )..._
original proceeding and when it concerns civil rights, it is
an original civil proceeding (see, for instance, State of U.P.
v. Vijay Anand Maharaj, [(1963) 1 SCR 1,16], CIT v.
lshwarlal Bhagwandas, [AIR 1965 SC 1818], Ramesh v.
Seth Gendalal Motilal Patni, (1966] 3 SCR 198), Arbind E
Kumar Singh v. Nand Kishore Prasad, (1968 (3) SCR
322) and Ahmedabad Mfg. & Calico Ptg. Co. Ltd. v. Ram
Tahe/ Ramnand, (AIR 1972 SC 1598)."
. --,, 11. In para 106, it was noted as follows:
F
"106. The non obstante clause in Rule 18, namely,
"Notwithstanding anything contained in Rules 1, 4 and 17
of this chapter", makes it abundantly clear why that rule
uses the words "finally disposed of'. As seen above, under
Rules 1 and 17, applications under Articles 226 and 227 G
are required to be heard and disposed of by a Division
Bench. Rule 4, however, gives power to a Single Judge
to issue rule nisi on an application under Article 226 but
precludes him from passing any final order on such
H
178 SUPREME COURT REPORTS [2008] 15 S.C.R.

r-' ~
A application. It is because a Single Judge has no power
under Rules 1, 4 and 17 to hear and dispose of a petition
under Article 226 or 227 that the non obstante clause has
been introduced in Rule 18. The use of the words "be heard
and finally disposed of by a Single Judge" in Rule 18
B merely clarifies the position t~at in such cases the power
of the Single Judge is not confined merely to issuing a rule
nisi. These words were not intended to bar a 'tight of
appeal. To say that the words "finally disposed of' mean
finally disposed ·of so far as· the High Court is concerned
c is illogical because Rules 1, 4 and 7 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
D ...( \.
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
E
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 '
,,',.
:w-1
of barring a right of appeal conferred by the Letters Patent.
F As we have seen above, a~ 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."
G
12. In Sushi/abal Laxminarayan Mud/iyar v. Nihalchand
Waghajibhai Shaha, [1993] Supp. 1 SCC 11 this court with
r-
reference to an unreported judgment in Ratnagiri District
Central Co-operative Bank Ltd. v. Dinkar Kashinath Watve,
H C.A. No. 520of1989 decided on 27.1.1989 held as follows:
M.M.T.C. LIMITED v. COMMISSIONER OF COMMERCIAL 179
TAX & ORS. [DR. ARIJIT PASAYAT, J.]

"Even when in the cause title of an application both A
Article 226 and Article 227 of the Constitution have been
mentioned, the learned single Judge is at liberty to decide,
according to facts of each particular case, whether the said
application ought to be dealt with only under Article 226
of the Constitution. For determining the q~estion of B,
maintainability of an appeal against such a judgment of the
,, Single Judge the Division bench has to find out whether
in substance the judgment has been passed by the learn.ed
Single Judge in exercise of the jurisdiction under Article
226 of the Constitution. In the event in passing his judgment c
on an application which had mentioned in its cause title
both Articles 226 and 227, the Single Judge has in fact
invoked only his supervisory powers under Article 227, the
appeal under clause 15 would not lie. The clause 15 of the
Letters Patent expressly bars appeals against orders of
D
~ ) ""' Single Judges passed under revisional or supervisory
powers. Even when the learned Single Jl,Jdge's order has
been passed under both the articles, for deciding the
maintainability against such an order what would be
relevant is the principal or main relief granted by the
judgment passed by learned Single Judge and not the E '

ancillary directions given by him. The expression 'ancillary'
means, in the context, incidental or consequential to the
main part of the order.

Thus, the determining factor is the real nature of F
prinCipal order passed by the Single Judge which is
·appealed against and neither the mentioning in the cause
title of the apprication of both the articles nor the granting
of ancillary orders thereupon made by learned Single
Judge would be relevant. Thus, in each case, the Division .G
Bench may consider the substance of the judgment under
~
appeal to ascertain whether the Single Judge has mainly
or principally exercised in the matter his jurisdiction under
Article 226 or under Article 227. In the event in his judgment
the learned Single Judge himself had mentidned the H
• I

180 SUPREME COURT REPORTS [2008] 15 S.C.R

A particular article of the Constitution under which he was
passing his judgment, in an appeal under clause 15
against such a judgment it may not be necessary for the
appellate bench to elabor~tely examine the question of its
maintainability. When wit,hout mentioning the particular
B article the learned Single Judge decided on merits 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, for maintainability of an appeal, the
c 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."
D
13. Thereafter this Court explained the ratio laid down in
_,( ' ...
\

the case of Umaji's case (supra) and expressed thus:

" ... In Umaji case it, was clearly held that where the
E 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 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
F
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 L~tters Patent where the substantial
part of the order sought to be appealed against is under
G Article 226. Rule 18 of the Bombay High Court Appellate
Side Rules read with .clause 15 of the Letters Patent
provides for appeal to t~e Division Bench of the High Court
from a judgment of the learned Single Judge passed on a
writ petition under Article 226 of the Constitution. In the
H
M.M.T.C. LIMITED v. COMMISSIONER OF COMMERCIAL 181
TAX & ORS. [DR. ARIJIT PASAYAT, J.]
'
.. """'.'.
present case the Division Bench was clearly wrong in A
holding that the appeal was not maintainable against the
order of the learned Single Judge."

14. In Mangalbhai & Ors. v. Radhyshyam, (Dr.) AIR
(1993) SC 806 it was inter alia observed as follows: B
"The learned Single Judge in his impugned judgment
dated December 11, 1987 nowhere mentioned that he was
exercising the powers under Article 227 of the
Constitution. The learned Single Judge examined the
matter on merit and set aside the orders of the Rent c
Controller as well as the Resident Deputy Collector on the
ground that the aforesaid judgments were perverse. The
findings of the Rent Controller and Resident Deputy
Collector were set aside on the question of habitual
defaulter as well as on the ground of bona fide need. Thus D
,...._
in the totality of the facts and circumstances of the case,
..,.- the pleadings of the parties in the writ petition and the
judgment of the learned Single Judge leaves no manner
of doubt that it was an order passed under Article 226 of
the Constitution and in that view of the matter the Letters E
Patent Appeal was maintainable before the High Court.
After taking the aforesaid view one course open was to
set aside the order of the Division Bench and to remand
the matter for being disposed of on merits by the Division
~
Bench of the High Court. However, taking in view the fact F
that this litigation is going on for nearly a decade and also
the fact that even the learned Single Judge in his impugned
order dated December 11, 1987 had remanded the case
to the Rent Controller, we considered it proper in the
interest of justice to hear the appeal on merits against the
G
judgment of the learned Single Judge. We have heard
learned counsel for the parties at length on the merits of
the case."

15. In Lokmat Newspapers (P) Ltd. v. Shankarprasad,
H
182 SUPREME COURT REPORTS [2008] 15 S.C.R.

A [1999) 6 sec 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
B
appropriate writ of certiorari under Article 226 of the
Constitution of India." Bas'ic 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
c learned Single Judge nowhere stated that the Court was
considering the writ petition under Article 226 of the
Constitution of India. It is yqu'ally true that the learned Single
Judge dismissed the writ petition by observing that the
courts below had appreciated the contentions and rejected
D 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 of the
Constitution of India only. The said observation equally
supports the conclusion that the learned Judge was not
E inclined to interfere under Articles 226 and 227. As seen
earlier, he was considering the aforesaid writ petition
moved under Article 226 as well as Article 227 of the
Constitution of India. Under these circumstances, it is not
possible to agree with the contention of learned counsel
F for the appellant that the learned Single Judge had refused
to interfere only unde~ Article 227 of the Constitution of
India when he dismissed the writ petition of the respondent.
In this connection, it is· profitable to have a look at the
decision of this Court in the case of Umaji Keshao
G Meshram v. Radhikabt;Ji, [1986) Supp.Sec 401. In that
case 0. Chinnappa Reddy and D.P. Madon, JJ.,
considered the very same question in the light of clause
15 of the Letters Patent of the Bombay High Court. Madon,
J., speaking for the Court in para 107 of the Report at p.
H 473, made the following pertinent observations: (SCC p.
M.M.T.C. LIMITED v. COMMISSIONER OF COMMERCIAL 183
TAX & ORS. [DR. ARIJIT PASAYAT, J.]
,-....
473, para 107) A

"107. Petitions are at times filed both under Articles 226
and 227 of the Constitution. The case of Hari
Vishnu Karnath v. Syed Ahmad lshaque, AIR
(1955) sc·233 before this Court was of such a type.
B
Rule 18 provides that where such petitions are filed
'y against orders of the tribunals or authorities
specified in Rule 18 of Chapter XVII of the
Appellate Side Rules or against decrees or orders
of courts specified in that rule, they shall be heard
and finally disposed of by a Single Judge. The c
question is whether an <lppeal would lie from the
decision of the Single Judge in such a case. In our
opinion, where the 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
D-

and ju.stice to such party and in order not to deprive
him of the 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 E
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
-- 't 15 of the Letters Patent where the substantial part
of the order sought to be appealed against is under F
Article 226. Such was the view taken by the
Allahabad High Court in Aida/ Singh v. Karan
lllllit Singh, AIR (1957) All 414 and by the Punjab High
'
Court in Raj Kishan Jain v. Tutsi Dass, AIR(1959)
Punj 291 and Barham Dutt v. Peoples' Coop. G
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
H
184 . SUPREME COURT REPORTS [2008] 15 S.C.R.

A 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 c~nnot be said that the learned
Single Judge had exercised his jurisdiction only under
B 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 ih.
his judgment, as seen earlier. Consequently, it could not
c 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 patent appeal was not maintainable. For all
D
these reasons, therefore, the primary objection to the
maintainability of the letters patent appeal as canvassed
by learned counsel for the appellant, has to be repelled.
Point 1 is, therefore, answered in the affirmative against
the appellant and in favour of the respondent. It takes us
E to the consideration of points arising for our decision on
merits."

16. In Surya Dev Rai v. Ram Chander Rai & Ors.. , AIR
2003 SC 3044 after referring to decisions in Custodian of
F Evacuee Property, Bangalore v. Khan Saheb Abdul Shukoor,
etc., [1961] 3 SCR 855 and Nagendra Nath Bora & Anr. v.
Commissioner of Hills Division, AIR (1958) SC 398, T.C.
Basappa v. T. Nagappa, AIR (.1954) SC 440 and Rupa Ashok
Hurra v. Ashok Hurra, AIR (2002) SC 1771, this Court held at
G paragraphs 17, 19 & 25 as follows: ·

"17. From the aforesaid enunciation of law it is quite vivid
and luminescent that the pleadings in the writ petition,
nature of the order passed by the learned Single Judge,
character and the contour of the order, directions issued,
H
M.M.T.C. LIMITED v. COMMISSIONER OF COMMERCIAL 185
I TAX & ORS. [DR. ARIJIT PASAYAT, J.]
')~..

nomenclature. given the jurisdictional prosp8ctive in the A
constitutional context are to be perceived. It cannot be said
in a hypertechnical manner that an order passed in a writ
. petition, if there is assail to the order emerging from the
inferior tribunal or subordinate Court has to be treated all
the time for all purposes to be under Article 227 of the B
Constitution of India. Phraseology used in exercise of
original jurisdiction under Article 226 of the ConstituHon in
Section 2 of the Act cannot be given a restricted and
constricted meaning because an order passed in a writ
petition can tantamount to an order under Article 226 or c
227 of the Constitution of India and it would depend upon
the real nature of the order passed by the learned Single
Judge. To elaborate; whether the learned Single Judge has
exercised his jurisdiction under Article 226 or under Article
227 or both would depend upon various aspects and many 0
a facet as has been emphasized in the afore quoted
decisions of the apex Court. The pleadings, as has been
indicated hereinabove, also assume immense
significance. As has been held in the case of Surya Devi
Rai (supra) a writ of certiorari can be issued under Article E
226 of the Constitution against an order of a Tribunal or
an order passed by the sub ordinate court. In quint
essentiality, it cannot be put in a state jacket formula that
any order of the learned judge that deals with an order
arising from an inferior tribunal or the sub ordinate court
is an order under Article. 227 of the Constitution of India F
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, c~xit, overlap imbricate. In this context G
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 Constitutions is fundamentally
H
SUPREME COURT REPORTS [2008] 15 S.C.R.

A a repository and reservok of justice based on equity and
.: good conscience. It will depend upon tactual 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
B
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
c jurisdiction to command.'a writ of certiorari or to exercise
supervisoryjurisdiction u'nder Article 227 in the given facts.
and circumstances in a variety of cases, it seems that the
distinction between the two jurisdictions stands almost
obliterated in practice. Probably, this is the reason why it
D has become customary with the lawyers labelling their
petitions as one common under Articles 226 and 227 of
the Constitution, though such practice has been
deprecated in some judicial pronouncement. Without
entering into niceties and technicality of the subject, we
E venture to state the broad general difference between the
two jurisdictions. Firstly, the writ of certiorari is an exercise
of its original jurisdiction by the High Court; exercise of
supervisory jurisdiction is not an original jurisdiction and
in this sense it is akin to appellate, revisional or corrective
F jurisdiction. Secondly,· in a writ of certiorari, the record of
the proceedings having been certified and sent up by the
inferior court or tribunal to the High Court, the High Court
if inclined to exercise .Its jurisdiction, may simply annul or
quash the proceedings and then do no more. In exercise
of su.pervisory jurisdiction, the High Court m·ay not only
G
quash or set aside the impugned proceedings; judgment
or order but it may also make such directions as the facts
and circumstances of the case may warrant, maybe, by
way of guiding the inferior court or tribunal as to the manner
in which it would now proceed further or afresh as
H
M.M.T.C. LIMITED v. COMMISSIONER OF COMMERCIAL 187
TAX & ORS. [DR. ARIJIT PASAYAT, J.]

commended to or guided by the High Court In appropriate A
cases the High Court, while exerci·sing supervisory
jurisdiction, may substitute such a decision of its own in
place of the impugned decision, as the inferior court or
tribunal should have made. Lastly, the jurisdiction under
Article 226 of the Constitution is capable of being B
exercised on a prayer made by or on behalf of the .Party
aggrieved; the supervisory jurisdiction is capable of being
exercised suo motu as well."

17. In view of what has been stated above, the High Court
was not justified in holding that the Letters Patent Appeal was C
· . not maintainable. In addition, a bare reading of this Court's
earlier order shows that the impugned order is clearly
erroneous. The impugned order is set aside. The writ appeal
shall be heard by the Division Bench on merits.
D
18. The appeal is allowed.

S.K.S. Appeal allowed.