Leave granted.
Having heard learned counsel for the respective parties, we are unable to
sustain the order passed by the Division Bench of the Madhya Pradesh High Court
dismissing the appeal as preferred by the appellant herein on the ground that the
appeal had been preferred against an order passed under Article 227 of the
Constitution. We have had occasion to look into the petition which had been filed
before the Single Bench of the High Court, which has been styled as writ petition
under Article 226/227 of the Constitution of India. The Division Bench of the High
Court appears to have not taken into consideration the fact that the petition had
been styled as a writ petition under Article 226 as well and that the frame of the
petition was that of a writ petition as would also be evident from the prayers made
therein.
We are unable to agree with the High Court that the learned Single Judge
had passed order under Article 227 of the Constitution of India and that the appeal
was not maintainable.
We, accordingly, allow the appeal and remit the matter to the High Court to
treat the petition as one under Article 226 of the Constitution and to dispose of W.A.
182 of 2006 in accordance with law, within two months from the date of
communication of this order.
There will be no order as to costs.
New Delhi, January 05, 2009.]