Court No. - 21
Case :- SPECIAL APPEAL DEFECTIVE No. - 239 of 2017 Appellant :- Harveer Singh Respondent :- Board Of Revenue, U.P. Allahabad And 6 Others Counsel for Appellant :- Surendra Pratap Singh Counsel for Respondent :- C.S.C.
Hon'ble V.K. Shukla,J.
Hon'ble Mahesh Chandra Tripathi,J.
For the reasons stated in affidavit filed in support of delay condonation, as the same constitutes sufficient cause for condoning the delay in filing special appeal, the Delay Condonation Application is allowed. Special Appeal is treated to have been filed well within time.
Harveer Singh is before this Court assailing the validity of the order dated 16.2.2016 passed by learned Single Judge of this Court in Writ-B No. 5849 of 2016 (Harveer Singh Vs. Board of Revenue Allahabad and others) and the order dated 29.3.2017 passed on the review application wherein learned Single Judge has refused to intervene with the order passed on earlier occasion.
Record in question reflects that an order was passed about 60 years back and an application for restoration was moved and said restoration application was rejected and, thereafter, a recall application was filed and same was also dismissed by the Sub Divisional Officer. Petitioner, at the said juncture, filed Writ Petition No. 57160 of 2013 and this Court passed the following order;
"Heard learned counsel for the petitioner Sri S.P.Singh.
A restoration application was filed in relation to an order passed about 60 years ago. The said restoration application was rejected and thereafter a recall application was filed, the same has also been dismissed by the Sub-Divisional Officer.
If the petitioner is aggrieved, he will have a remedy to file a revision as such proceedings would now be governed by the provisions of U.P.Z.A. & L.R. Act, 1950 . The forum in revision is under section 333 of U.P.Z.A. & L.R. Act, 1950 . Consequently I am not inclined to entertain this writ petition, it is accordingly dismissed."
Pursuant to the liberty, that has been so accorded, revision has been preferred and the said revision was dismissed by the Board of Revenue and, thereafter, it appears that a recall application was filed and same was also rejected and then Writ Petition No. 5849 of 2016 has been filed and same has been dismissed as follows:
"Heard learned counsel for the parties.
By means of this writ petition, the petitioner has challenged an order dated 04.01.2016 passed by the respondent no. 1, the Board of Revenue, while exercising powers conferred by Section 333 of the U.P. Zamindari Abolition & Land Reforms Act.
By means of this revision filed before the Board of Revenue invoking Section 333 of the U.P.Z.A&L.R. Act, the petitioner had challenged an order passed by the Deputy Collector, Baran (Sadar), Bulandshahar in a suit under Section 59 of the U.P.
Tenancy Act.
In my considered opinion, since the proceedings where from the writ petition arises were proceedings under the U.P. Tenancy Act, the petitioner could not have challenged orders passed in such proceedings before the Board of Revenue invoking Section 333 of the U.P.Z.A.&L.R. Act.
In such view of the matter, I do not consider it appropriate to interfere as the order of the Board of Revenue, is prima facie, without jurisdiction.
The petitioner may avail the appropriate remedy available to him under the U.P. Tenancy Act for redressal of his grievance, if any.
Subject to the aforesaid, this writ petition is dismissed."
Thereafter, review application has been filed and same has also been rejected as follows;
"Upon hearing learned counsel for the petitioner, no ground for review of the order dated 16.02.2016 is made out.
The review application is accordingly rejected."
Petitioner, at this juncture, is before this Court.
On the matter being taken up today a preliminary objection has been raised that special appeal is not competent and maintainable, inasmuch as, the proceedings in question are emanating out of proceedings undertaken before the Board of Revenue under Section 333 of U.P.Z.A. & L.R. Act and, as such, special appeal is liable to be dismissed.
Sri S.P. Singh, Advocate, on the other hand, has contended that this Court has relegated the petitioner appellant to avail the revisional forum and, as such, learned Single Judge could not have said that order of Board of Revenue was, prima facie, without jurisdiction.
Before we deal with the subject, it would be worthwhile to look into the provisions of Chapter VIII Rule 5 of the High Court Rules as special appeal is provided for under Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952 and the same reads as follows:
(i) Chapter VIII Rule 5 "5. Special appeal.- An appeal shall lie to the Court from a judgment (not being a judgment 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 and not being an order made in the exercise of revisional jurisdiction or in the exercise of its power of superintendence or in the exercise of criminal jurisdiction or in the exercise of jurisdiction conferred by Article 226 or Article 227 of the Constitution in respect of any judgment, order or award-(a) 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 the State List or the Concurrent List in the Seventh Schedule to the Constitution or (b) of the Government or any Officer or authority, made or purported to be made in the exercise or purported exercise of appellate or revisional jurisdiction under any such Act of one Judge."
The provisions of Chapter VIII Rule 5 would go to show that an appeal lies, first and foremost, from a judgement. Rules 5 then proceeds to lay down the expected categories or exclusions where a special appeal will not be maintainable. The exclusions, which have been specified in Rule 5, are:
"(i) A judgment passed in the exercise of the appellate jurisdiction in respect of a decree or order made by a court subject to the superintendence of the Court;
(ii) An order made in the exercise of revisional jurisdiction;
(iii) An order made in the exercise of the power of superintendence;
(iv) An order made in the exercise of criminal jurisdiction;
(v) An order made in the exercise of jurisdiction conferred by Articles 226 or 227 of the Constitution in respect of any judgment, order or award :
(a) 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 Central Act, with respect to a matter contained in the State List or the Concurrent List to the Seventh Schedule of the Constitution; or
(b) of the government or any officer or authority, made or purported to be made in the exercise or purported exercise of appellate or revisional jurisdiction under any such Act."
On the parameters of the aforementioned provisions, we have to see and examine as to whether the judgement in question i.e. being assailed before us, would fall within the scope and ambit of the exclusions which have been specified in Rule 5 of Chapter VIII and it is clearly reflected that once the proceedings in question are emanating out of appeal or revision under the State Act, special appeal before this Court cannot be held competent and maintainable by any means and, in the present case, admittedly the proceedings in question before the learned Single Judge were emanating from the order passed by the Board of Revenue, as such, present special appeal cannot be held to be competent and maintainable.
Special appeal sans merit and same is dismissed, accordingly.
Order Date :- 18.4.2017 Shekhar