2008 (11) TMI 373 - SC - VAT and Sales Tax

Maintainability of appeal - Held that - Appeal allowed. 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 erroneous. The impugned order is set aside. The writ appeal shall be heard by the Division Bench on the merits.

Issues Involved:
1. Maintainability of the Letters Patent Appeal (LPA).
2. Interpretation of the earlier order by the Supreme Court.
3. Jurisdiction under Articles 226 and 227 of the Constitution of India.

Detailed Analysis:

1. Maintainability of the Letters Patent Appeal (LPA):
The primary issue in this case was whether the LPA filed by the appellant was maintainable. The High Court had dismissed the writ appeal on the grounds that it was not maintainable, as the order was passed in exercise of power of superintendence under Article 227 of the Constitution of India. According to Section 2(1) of the M.P. Uchcha Nyayalay (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005, no appeal shall lie against an order passed in exercise of supervisory jurisdiction under Article 227 of the Constitution.

The Supreme Court noted that the prayer in the writ petition was to quash the order of assessment passed by the Assistant Commissioner, Commercial Tax, which involved the levying of purchase and entry tax. This indicated that the nature of the relief sought and the controversy involved should determine the applicable Article, not merely the nomenclature of the writ petition.

2. Interpretation of the Earlier Order by the Supreme Court:
The Supreme Court emphasized that its earlier order dated August 22, 2006, clearly directed the High Court to consider the LPA on its merits and granted three weeks' time to the petitioner to prefer the LPA. The High Court was directed to dispose of the LPA on the merits if it was otherwise free from defect. The Supreme Court found that the High Court had misconstrued this order by interpreting it as merely waiving the limitation for filing the LPA, which was incorrect.

3. Jurisdiction under Articles 226 and 227 of the Constitution of India:
The Supreme Court analyzed the distinction between Articles 226 and 227. Article 226 involves issuing orders, directions, or writs to any person or authority, whereas Article 227 involves the supervisory jurisdiction over subordinate courts or tribunals. The Court cited several precedents to elucidate this distinction, including Hari Vishnu Kamath v. Ahmad Ishaque, Umaji Keshao Meshram v. Radhikabai, and Surya Dev Rai v. Ram Chander Rai.

The Court noted that the High Court failed to consider the nature of the controversy and the relief sought in the writ petition, which was to set aside the decision of the assessing officer. The Supreme Court reiterated that when a writ petition involves both Articles 226 and 227, the substantial part of the order should determine the jurisdiction, and the right of appeal under clause 15 of the Letters Patent should not be denied if the substantial relief pertains to Article 226.

Conclusion:
The Supreme Court concluded that the High Court was not justified in holding that the LPA was not maintainable. The High Court's order was set aside, and the Division Bench was directed to hear the writ appeal on its merits. The appeal was allowed, emphasizing that the nature of the relief sought and the controversy involved should determine the applicable Article, and the earlier order by the Supreme Court was clear in directing the High Court to consider the LPA on its merits.

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