Court No. - 34
Case :- SPECIAL APPEAL No. - 1196 of 2019 Appellant :- Committee Of Management, Vindeshwari Inter College Respondent :- State Of U.P. And 03 Others Counsel for Appellant :- Murli Dhar Mishra,Rekha Jaiswal,Vijay Kumar Tiwari Counsel for Respondent :- C.S.C.,Ramesh Chandra Upadhyay
Hon'ble Sudhir Agarwal,J. Hon'ble Rajeev Misra,J.
1. Sri M.D. Mishra, Advocate for appellant and learned Standing Counsel for Respondents-1 to 3.
2. The order passed by Collector, Azamgarh in purported exercise of power under Section 38 of U.P. Revenue Code, 2006 (hereinafter referred to as “Code, 2006”) was challenged before learned Single Judge in Writ Petitions No. 28057 of 2019 and 5463 of 2018, which have been decided vide judgment dated 22.10.2019, whereagainst present appeal has been filed.
3. Collector, when exercised power under Section 38 of Code, 2006, acts as a Revenue Court and its order is appealable before Commissioner, therefore, writ petition challenging such an order is referable to Article 227 of Constitution of India and order of learned Single Judge passed in such writ petition is not appeable under Chapter VIII Rule 5 of Allahabad High Court Rules, 1952 in view of Division Bench judgment of this Court in Vajara Yojna Seed Farm and Ors Vs. Presiding Officer, Labour Court II and Ors. (2003) 1 UPLBEC 496. The Division Bench in para 64 of judgment held :
"64. From the above discussions and looking into the provisions of U.P.
Act No. 14 of 1962 as amended by Amendment Act of 1981 and Chapter VIII, Rule 5 of the Rules of the Court, 1952, special appeal is excluded from a judgment of one Judge of this Court in following categories :-
(i) Judgment of one Judge passed in the exercise of appellate jurisdiction in respect of a decree or order made by a Court subject to the Superintendence of the Court.
(ii) Judgment of one Judge in the exercise of revisional jurisdiction.
(iii) Judgment of one Judge made in the exercise of its power of Superintendence.
(iv) Judgment of one Judge made in the exercise of criminal jurisdiction.
(v) Judgment of order of one Judge made in the exercise of jurisdiction conferred by Article 226 or Article 227 of the Constitution in respect of any judgment, order or award of a Tribunal, Court or 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 State List or Concurrent List.
(vi) Judgment or order of one Judge made in exercise of jurisdiction conferred by Article 226 or Article 227 of the Constitution in respect of any judgment, order or award by the Court or any officer or authority made or purported to be made in the exercise or purported exercise of appellate or revisional jurisdiction under any Uttar Pradesh Act or under any Central Act."
4. Similar controversy came up before Full Bench arising out of provisions of U.P. Scheduled commodities Distribution Order, 2004, in Sheet Gupta vs. State of U.P. and others AIR 2010 All. 46 where law was considered in detail and law was finally laid down in para 15 thereof. In respect of any order passed by a learned Single Judge in the exercise of jurisdiction conferred by Article 226 or 227 of 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 of Constitution, a Special Appeal has been held to be barred.
5. Para 15 of Full Bench judgment in Sheet Gupta (supra) is relevant, which reads as under :
"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.”
6. Aforesaid authorities have also been followed by Division Bench of this Court in Abhishek Sahu vs. Civil Judge (S.D.), Lucknow and Ors. 2014(11) ADJ 407 and Special Appeal Defective No. 387 of 2019 (Lakhami Chandra vs. Smt. Nazma and others), decided on 30.04.2019.
7. Appeal is accordingly dismissed as not maintainable.
Order Date :- 26.11.2019 AK