JUDGMENT

Dr. Arijit Pasayat, J. —

1. Leave granted.

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 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 Patent Appeal is not maintainable. The order of learned Single Judge was passed on 9.11.2005. Against the said order, special leave petition was filed which 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 only waived the limitation for filing of Letters 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 Court that merely limitation was waived is 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.

4. Learned counsel for the respondent-State on the other hand supported the impugned judgment of the High Court.

5. The earlier order passed by this Court dated 22.8.2006 reads as follows:

“Heard.

Since the impugned order is passed by a learned 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 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 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 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 unsustainable.

7. In addition, the High Court seems to have gone by the nomenclature gone by the nomenclature i.e. the discription given in the writ petition to be one under Article 227 of the Constitution. The High Court did not consider the nature of the 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.

8. Section 2 of 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, to a Division bench comprising of two judges of the same 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.”

9. This Court in Hari Vishnu Kamath v. Syed Ahmad Ishaque and Ors.,1 (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