Court No. - 33
Case :- SPECIAL APPEAL No. - 725 of 2019 Appellant :- M/S Shree Krishna Cattle Feed Industries Respondent :- State Of U.P. And 4 Others Counsel for Appellant :- Ram Autar Verma Counsel for Respondent :- C.S.C.
Hon'ble Manoj Misra,J.
Hon'ble Saurabh Shyam Shamshery,J.
In this intra-court appeal, the order under challenge is an order dated 2.5.2019 passed by a learned single judge on Misc. Petition (Civil) No.3391 of 2019 preferred under Article 227 of the Constitution of India against judgment and award dated 15.7.2014, signed on 22.9.2014, passed by The U.P. State Micro & Small Enterprises Facilitation Council, Directorate of Industries, U.P. Kanpur on Reference No.33 of 2012, under the provisions of Micro, Small and Medium Enterprises Development Act, 2006 (for short Act, 2006); and the order dated 14.2.2019 by which the District Judge, Ramabai Nagar (Kanpur Dehat) rejected the Misc. Application /Objection No.06/70/2015 preferred by the appellant against the award dated 22.09.2014 and thereby affirmed the award.
By the impugned judgment and order dated 2.5.2019, the learned single judge dismissed the petition.
The office has submitted a report that the special appeal is not maintainable under Chapter VIII Rule 5 of the High Court Rules.
Chapter VIII Rule 5 of the Rules of the Court provides as follows:
"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 the 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 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.]"
In Sheet Gupta v. State of U.P., 2009 SCC OnLine All 1613 : AIR 2010 All 46 : (2010) 82 ALR 209 : (2010) 1 All LJ 561, a Full Bench of this court while interpreting the provisions of Chapter VIII Rule 5 held as follows:
“18. 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.”
(Emphasis Supplied) As the learned single judge passed the impugned order in exercise of power of superintendence available to the High Court under Article 227 of the Constitution of India, on a petition challenging the order passed by District Judge, Ramabai Nagar (Kanpur Dehat), the stamp reporter has reported that the appeal is not maintainable.
Assailing the report of the stamp reporter, the learned counsel for the appellant submitted that although the petition might have been registered under Article 227 of the Constitution of India but in fact it was writ petition under Article 226 of the Constitution of India challenging an award of the Facilitation Council passed under the Act, 2006, which is an Act enacted by taking recourse to Entry No.97 in the Union List, therefore, special appeal would be maintainable.
The aforesaid argument is not acceptable even if we assume that the writ petition was wrongly treated as a petition under Article 227 inasmuch as by virtue of sub-section (3) of section 18 of the Act, 2006 the provisions of the Arbitration and Conciliation Act, 1996 ( for short Act No.26 of 1996) apply to the disputes as if the arbitration was in pursuance of an arbitration agreement referred to in sub-section (1) of Section 7 of Act No.26 of 1996. It is noteworthy that Act No.26 of 1996 though is a Central Act but has been enacted in exercise of power conferred by Entry No.13 in the Concurrent List. Therefore, once the award of the Facilitation Council has been affirmed by the District Judge, as a Court, on an application / objection under section 34 of the Act No.26 of 1996, without setting aside the order of the Court / District Judge no relief could be granted to the appellant. It is for this reason, that the appellant in his petition before the learned single judge had challenged the order of the District Judge. Under the circumstances, against the order of the learned single judge, even if it is assumed that it was not passed in exercise of power of superintendence, though as per nomenclature of the petition it was, an intra-court appeal would not be maintainable as it would fall within exception no.5 mentioned in paragraph 18 of Full Bench decision of this court in Sheet Gupta's case (supra) extracted above.
Accordingly, the objection raised by the Stamp Reporter is sustained.
The special appeal is dismissed as not maintainable.
Order Date:-4.6.2019 SB