Madhya Pradesh High Court
State Of M.P. vs Mid India Developers Pvt.Ltd & Anr. on 13 January, 2020
Author: S.C.Sharma
Bench: S.C.Sharma
1 WA-105-2009
The High Court Of Madhya Pradesh
WA-105-2009
(STATE OF M.P. Vs MID INDIA DEVELOPERS PVT.LTD & ANR. AND OTHERS)
4
Indore, Dated : 13-01-2020
Shri Abhishek Tugnawat, learned counsel for the appellant/State.
Shri A.K. Sethi, learned senior Counsel with Shri Nitin Phadke, learned
counsel for the Respondent no.1.
The present writ appeal is arising out of judgment dated 23.09.2008 passed in Writ Petition No.5372/2008 by the learned Single Judge in State V/s Mid India Developer Pvt. Ltd. and other. The writ petition was preferred under Article 226 of the Constitution of India by the State of Madhya Pradesh against an order passed by the Board of Revenue dated 21.09.2007 and the learned Single Judge has dismissed the writ petition.
Though the matter was listed on an application for grant of interim relief, learned counsel for the parties have consented for hearing at the motion hearing stage itself.
Shri A.K. Sethi, learned Senior counsel has drawn the attention of this Court towards the judgment delivered by Division Bench in the case of Jagdish Prasad V/s Board of Revenue and others in W.A. No.338/2018 decided on 15.05.2018 and the contention is that the writ appeal is not maintainable against an order passed by High Court in exercise of power of superintendence under Article of 227 of Constitution of India.
Shri Sethi to bolster his submission has placed heavy reliance on the judgment in the case of Jagdish Prasad V/s Board of Revenue and others in W.A. No.338/2018 decided on 15.05.2018. The order passed by this Division Bench of this Court reads as under:-
2. This intra-court appeal has been filed against the order dated12.02.2018 passed in W. P. No.727/2016, whereby learned Writ Court dismissed the writ petition with liberty to apply for diversion again after settlement of his right and title over the land in question.
3. The writ petitioner in exercise of supervisory jurisdiction Digitally signed by Ajit Kamalasanan Date: 16/01/2020 10:47:16
2 WA-105-2009 under Article 227 of the Constitution of India had filed the writ petition and against the order passed by the Board of Revenue, an intra-court appeal would lie. Learned counsel for the appellant has submitted that the Writ Court has not exercised the power of superintendence under Article 227 of the Constitution of India and, therefore, the law laid down by the Full Bench of this Court in W. A. No.286/2017 (Shailendra Kumar vs. Divisional Forest Officer & another) decided on 06.07.2017, the Division Bench of this Court dismissing W.A. No.265/2017 vide order dated 04.09.2017 (Trustees of H. C. Dhanda Trust vs. State of MP & others) is distinguishable and the present appeal is maintainable. He placed reliance on the decisions in the matter of Pernod Ricard India (P) Ltd. vs. State of MP & others reported in 2018(1) MPLJ 72, Jabalpur Bus Operators Association & others vs. State of MP & others reported in 2003(1) MPLJ 513, Jaideve Siddha (Dr.) & others vs. Jaiprakash Siddha & others reported in 2007(3) MPLJ 595, Manoj Kumar vs. Board of Revenue & others reported in 2008(1) MPLJ 152, Shailendra Kumar vs. Divisional Forest Officer & another reported in 2017(4) MPLJ 109, State of MP & others vs. M. S. Wakankar reported in 2007(1) MPLJ 99 and decision of Apex Court in the case of Jogendrasinghji Vijaysinghji vs. State of Gujarat & others reported in 2015(9) SCC 1,
4. It is well settled that merely giving a nomenclature of Article 226 of the writ petition, in case, a writ appeal is preferred, the Division Bench is required to consider the pleadings, nature of the order challenged and the relief claimed in the writ petition. Even the finding of the Writ Court in its regard that the writ petition decided in exercise of Article 226/227 is also not decisive.
5. In view of the latest Full Bench decision of this Court in the case of Shailendra Kumar (supra), the law laid down by the three Judges Bench of the Apex Court in the case of of Radheshyam & another vs. Chhabi Nath & others (Civil Appeal No.2548/2009) passed on 26.02.2015 and the view taken by the Apex Court in the case of Jogendrasinghji Vijaysinghji vs. State of Gujarat & others reported in 2015 (9) SCC 1, we are of the view that the in the present case, against Digitally signed by Ajit Kamalasanan Date: 16/01/2020 10:47:16 3 WA-105-2009 the order of Board of Revenue, no writ appeal is maintainable as the order passed by the Board of Revenue is not an original order.
6. On due consideration of the law laid down in the case of (Jagdish Prasad vs. Board of Revenue & others) Trustees of H. C. Dhanda Trust (supra) and Shailendra Kumar (supra), we are of the view that the writ petition of the appellant was purely a petition under article 227 of the Constitution of India. The present appeal filed under Section 2(1) of the Madhya Pradesh Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam is not maintainable. The writ appeal is accordingly, dismissed, as not maintainable.
In light of the aforesaid order passed by this Division Bench, the present Writ Appeal is not at all maintainable.
Learned counsel for the State prays for a liberty to approach Hon'ble the Supreme Court. He is certainly having the aforesaid liberty.
The present Writ Appeal is dismissed as not maintainable. Certified copy as per rules.
(S.C.SHARMA) (SHAILENDRA SHUKLA)
JUDGE JUDGE
ajit
Digitally signed by Ajit Kamalasanan
Date: 16/01/2020 10:47:16