Hon'ble Arvind Kumar Tripathi (II),J.
This Special Appeal has been filed assailing the judgment of the learned Single Judge refusing to exercise powers for expediting the hearing of a civil Suit under Article 227 of the Constitution of India.
At the very outset, it will be apt to point out that such an Appeal would have been maintainable as per the original existing provisions of Special Appeals under Chapter VIII Rule 5, as was interpreted by the Full Bench of our Court in Aidal Singh and others Vs. Karan Singh and others, AIR 1957 Allahabad 414.
However, thereafter the provisions of Chapter VIII Rule 5 have been amended twice, one under the U.P. Act No.14 of 1962 read with Notification dated 6.11.1963 and again in the year 1981 under the Uttar Pradesh High Court (Abolition of Letters Patent Appeals and Amendments) Act, 1981 read with the Notification issued in this regard. This aspect relating to the amendment having been brought about has been discussed in detail in the Division Bench judgment of this Court in the case of Vajara Yojna Seed Farm, Kalyanur (M/S) and others Vs. Presiding Officer, Labour Court II, U.P. Kanpur and another, (2003) 1 UPLBEC 496. The amendments have been discussed in paragraph Nos. 30 to 34 of the aforesaid reported decision.
After having noticed the same, the Bench went on to record it's findings and analyzed the provisions indicating the maintainability or otherwise of the Special Appeal, in paragraph No.64 of the said judgment.
This issue was again taken up for consideration by another Division Bench in the case of Anil Kumar and another Vs. State of U.P. and others, where also a decision arising out of proceedings under Section 122-B of the U.P. Zamindari Abolition and Land Reforms Act, 1950, was considered and it was held that a Special Appeal would not be maintainable.
The matter then came up before a Full Bench arising out of the provisions of U.P. Scheduled Commodities Distribution Order, 2004, in the case of Sheet Gupta Vs. State of U.P. and others, AIR 2010 Allahabad 46 (FB), where the aforesaid law was considered in detail and the law was finally laid down in paragraph No.13 thereof. A Special Appeal has been clearly held to be barred in respect of any order made by a learned single Judge in the exercise of jurisdiction conferred by Article 226 or 227 of the Constitution in respect of any judgment or award by the Tribunal Court or Statutory Arbitrator and certain orders made by a Judge in exercise of the powers under Article 226 or 227.
We have also followed the said decision in the case of Mahesh Prasad Yadav and others Vs. State of U.P. and others, Special Appeal No.1098 of 2005, decided on 8.10.2014, the judgment whereof is extracted herein below:-
"Hon'ble Amreshwar Pratap Sahi,J.
Hon'ble Arvind Kumar Tripathi (II),J.
Heard learned counsel for the appellants.
This special appeal arises out of the judgment of learned Single Judge rendered in a writ petition where the petitioners-appellants had assailed the order passed by the Deputy Labour Commissioner in conciliation proceeding under the U.P. Industrial Disputes Act, 1947 whereby the Deputy Labour Commissioner refused conciliation. The writ petition has given rise to the present controversy challenging the order of Deputy Labour Commissioner. The petition was dismissed on 7.9.2005 recording findings that the petitioners-appellants were the employees of the contractor and not of the company.
In view of the law laid down in the case of Vajara Yojna Seed Farm, Kalyanpur (M/S.) and others v. Presiding Officer, Labour Court II, U.P., Kanpur and another, (2003) 1 UPLBEC 496 and the decision of the Full Bench in the case of Sheet Gupta v. State of U.P. and others, AIR 2010 Allahabad 46 (FB), the special appeal would not be maintainable under Chapter VIII Rule 5 of the Allahabad High Court Rules. It will be useful to extract para 15 of the Full Bench Decision for an appreciation of conclusion drawn hereinabove as follows: -
"Having given our anxious consideration to the various plea raised by the learned counsel for the parties, we find that from the perusal of Chapter VIII Rule 5 of the Rules a special appeal shall lie before this Court from the judgment passed by one Judge of the Court. However, such special appeal will not lie in the following circumstances:
1. The judgment passed by one Judge in the exercise of appellate jurisdiction, in respect of a decree or order made by a Court subject to the Superintendence of the Court;
2. the order made by one Judge in the exercise of revisional jurisdiction;
3. the order made by one Judge in the exercise of the power of Superintendence of the High Court;
4. the order made by one Judge in the exercise of criminal jurisdiction;
5. the order made by one Judge in the exercise of jurisdiction conferred by Article 226 or Article 227 of the Constitution of India in respect of any judgment, order or award by
(i) the tribunal,
(ii) Court or
(iii) statutory arbitrator made or purported to be made in the exercise or purported exercise of jurisdiction under any Uttar Pradesh Act or under any Central Act, with respect to any of the matters enumerated in the State List or the Concurrent List in the Seventh Schedule to the Constitution of India;
6. the order made by one Judge in the exercise of jurisdiction conferred by Article 226 or 227 of the Constitution of India in respect of any judgment, order or award of
(i) the Government or
(ii) any officer or
(iii) authority, made or purported to be made in the exercise or purported exercise of appellate or revisional jurisdiction under any such Act, i.e. under any Uttar Pradesh Act or under any Central Act, with respect to any of the matters enumerated in the State List or the Concurrent List in the Seventh Schedule to the Constitution of India."
The special appeal is accordingly dismissed.
Order Date :- 8.10.2014 Sd/-"
The judgment reported in AIR 1957 Allahabad 414 was, however, considered in the decision of the Supreme Court reported in Shahu Shikshan Prasarak Mandal and another Vs. Late P. Kore and others, (2008) 13 SCC 525, and relying on the said decision, the Apex Court remitted the matter back to the Bombay High Court for decision in the context of the decision rendered therein.
Having perused the same, we find that the subsequent decision of this Court particularly the decision in the case of Vajara Yojna Seed Farm (supra) which is of the year 2003, does not appear to have been brought to the notice of the Apex Court nor does the Court appear to have been apprised of the amendments referred to herein above in Chapter VIII Rule 5.
In the aforesaid circumstances, the decision reported in AIR 1957 Allahabad 414, would be no longer a binding proposition of law, as on date, for the purpose of maintaining a Special Appeal in a matter arising out of an order passed in exercise of powers of superintendence over subordinate courts under Article 227 of the Constitution of India as explained above.
Consequently, for the reasons aforesaid, we do not find this Special Appeal to be maintainable which is, accordingly, dismissed.
Order Date :- 28.11.2014 Irshad