Dismissed

Afsari Begum v. State of U.P. and 2 Others

Allahabad HC25 Apr 2019SPLA/468/2019

Case brief

AI extract

What is this about?

This court dismissed a special intra-Court appeal as not maintainable. Relying on Full Bench precedents holding that orders under Section 95(1)(g) of the U.P. Panchayat Raj Act are those of a Tribunal, the court ruled that no special appeal lies against a Single Judge's judgment reviewing such an order under Article 226.

What did the court decide?

Special Appeal No. 468 of 2019 dismissed as not maintainable.

Afsari Begum Vs State of U.P. and 2 Others — Pension and Retirement Benefits | Allahabad HC (2019)

¶1

¶2

Court No. - 34

¶3

Case :- SPECIAL APPEAL No. - 468 of 2019

¶4

Appellant :- Afsari Begum Respondent :- State Of U.P. And 2 Others Counsel for Appellant :- Shri Krishna Mishra Counsel for Respondent :- C.S.C.

¶5

Hon'ble Sudhir Agarwal,J. Hon'ble Rajendra Kumar-IV,J.

¶6

Heard Sri S.K. Mishra, learned counsel for appellant; and, Sri A.K. Goel, learned counsel for respondents and learned Standing Counsel for State.

¶7

This intra-Court appeal under Chapter VIII Rule 5 of Allahabad High Court Rules, 1952 (hereinafter referred to as "Rules, 1952") has arisen from judgment dated 15.03.2019 passed by learned Single Judge dismissing appellant's Writ Petition No. 9358 of 2019 (Afsari Begum vs. State of U.P. and Others) wherein an order passed by District Judge, Moradabad under Section 95(1)(g) of U.P. Panchayat Raj Act, 1947 (hereinafter referred to as "Act, 1947") was challenged.

¶8

The question as to whether “an order passed by District Magistrate in exercise of powers under Section 95(1)(g) of Act, 1947 is an administrative order or he acts as a Tribunal” has been considered by a Full Bench of this Court in Shamim Vs. State of U.P. and Others AIR 2018 (All) 196, and this Court held as under:-

¶9

“40. We accordingly proceed to answer the reference in the following terms:

¶10

(A). The District Magistrate exercising delegated authority of the State Government, is a Tribunal exercising quasi judicial power by a quasi judicial authority under the proviso to Section 95(1)(g) of the Panchayat Raj Act while proceeding to cease the administrative and financial authority of the Pradhan pending final enquiry.

¶11

(B). Re-Question (i):The decision of the Division Bench in Smt.

¶12

¶13

Sonia vs. State of U.P. (supra) lays down the correct position of law.”

¶14

In Vajara Yojana Seed Farm and Others Vs. Presiding Officer, Labour Court II and Others 2003 (1) UPLBEC 496, this Court in para 64 has given details of the judgment of learned Single Judge whereagainst appeals under Chapter VIII Rule 5 of Rules, 1952 are inadmissible and we reproduce the same as under:-

¶15

“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 :-

¶16

(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.

¶17

(ii) Judgment of one Judge in the exercise of revisional jurisdiction.

¶18

(iii) Judgment of one Judge made in the exercise of its power of Superintendence.

¶19

(iv) Judgment of one Judge made in the exercise of criminal jurisdiction.

¶20

(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 more 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.

¶21

(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

¶22

¶23

in the exercise or purported exercise of appellate or revisional jurisdiction under any Uttar Pradesh Act or under any Central Act. ” (Emphasis added)

¶24

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 matter 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 Jude in exercise of the powers under Article 226 or 227 of Constitution, a Special Appeal has been held to be barred.

¶25

Para 15 of Full Bench judgment in Sheet Gupta (supra) is relevant, which reads as under :

¶26

“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:

¶27

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;

¶28

the order made by one Judge in the exercise of revisional jurisdiction;

¶29

the order made by one Judge in the exercise of the power of Superintendence of the High Court;

¶30

the order made by one Judge in the exercise of criminal jurisdiction;

¶31

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) t he tribunal,

(ii) Court or

(iii) statutory arbitrator

¶36

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;

¶37

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

¶38

(i) the Government or

¶39

(ii) any officer or

¶40

(iii) authority,

¶41

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.”

¶42

(Emphasis added) 7. Aforesaid authorities have also been followed by a Division Bench of this Court (Lucknow Bench) in Abhishek Sahu vs. Civil Judge (S.D.), Lucknow and Ors. 2014(11) ADJ 407.

¶43

Since power exercised by District Magistrate under Section 95(1)(g) of Act, 1947 is treated to be an order passed by Tribunal, by Full Bench in Shamim vs. State of U.P. (supra), therefore, in view of para 64(v) of the judgement of Vajara Yojana Seed Farm (supra) and para 15 in Sheet Gupta (supra), no intra-Court appeal lies hence, this appeal is not maintainable.

¶44

Appeal is accordingly dismissed as not maintainable. Order Date :- 25.4.2019 Siddhant Sahu

Afsari Begum v. State of U.P. and 2 Others

Case brief

What is this about?

What did the court decide?

Afsari Begum v. State of U.P. and 2 Others

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Bijendra Singh Vs State of U.P. and 6 Others

Kuber Singh Agariya Vs State of U P and 4 Others

Brahmavir Singh Vs State of U.P. and 5 Others

Prayag Sangeet Samiti Allahabad Vs the Divisional Commissioner Allahabad Division and Others

Shree Marwari Seva Sangh Vs State of U.P. and Others

Tajim Ahmad Khan and Others Vs State of U.P. and Ors.