Court No. - 39
Case :- SPECIAL APPEAL No. - 277 of 2018 Appellant :- Rajendra Sahai Respondent :- State Of U.P. And 4 Ors Counsel for Appellant :- Shriraman Pandey Counsel for Respondent :- C.S.C.,Om Prakash Singh,Sushil Kumar Rao
Hon'ble Dilip Gupta,J. Hon'ble Jayant Banerji,J.
This Special Appeal is directed against the judgement and order dated 7 February 2018 of a learned Judge of this Court by which Writ-A No.- 45906 of 2015 filed by the petitioner to challenge the order dated 19 February 2014 and also the order dated 5 June 2015 rejecting his statutory appeal has been dismissed.
Though number of submissions have been made by the learned counsel for the appellant, Shri O.P. Singh, learned Senior Counsel appearing for the respondents assisted by Shri Sudhanshu Srivastava has raised a preliminary objection that Special Appeal would not be maintainable as it is arises out of a writ petition in which there was a challenge to an appellate order also.
We find force in the submissions advanced by the learned Counsel for the respondents that this Special Appeal under Chapter VIII, Rule 5 of the Allahabad High Court Rules would not be maintainable as the writ petition was directed against an appellate order in view of the decision of a Division Bench of this Court in the case of Hasib Ahamad Vs. State of U.P. and Ors. reported in 2008 (6) ADJ 757.
The observations are as follows:-
"In the present case, the appellate power had been exercised by the Commissioner under Rule 28 of U.P. Scheduled Commodities Distribution Order, 2004 which had been framed under Section 3 of the Essential Commodities Act, 1955. Thus the appellate power exercised by the Commissioner in the present case referable to an appellate power conferred under an Act. Thus according to the ratio of the Division Bench in the case of Ram Dhyan Singh (supra), the present appeal is not maintainable under Chapter VIII Rule 5 of the Rules of the Court. The Special Appeal having been filed against a judgment of learned Single Judge arising out of a writ petition in which appellate order passed by the Commissioner was challenged which appellate order was passed in exercise of appellate jurisdiction under an Act is not maintainable under Chapter VIII Rule 5 of the Rules of the Court."
The Special Appeal is, accordingly, dismissed as not maintainable.
Order Date :- 30.3.2018 A. V. Singh (Dilip Gupta,J.) (Jayant Banerji,J.)