Dismissed

Nafeesa v. State of U.P. and 4 Others

Allahabad HC4 Nov 2019SPLAD/947/2019

Case brief

AI extract

What is this about?

The court dismissed a special appeal as defective and not maintainable. It held that special appeals are barred against orders passed by Single Judges exercising power under Articles 226/227 regarding judgments of tribunals or authorities under State/Central Acts, relying on full bench and division bench precedents.

What did the court decide?

Appeal dismissed as not maintainable; condonation of delay application dismissed.

Nafeesa Vs State of U.P. and 4 Others — Civil Procedure and Limitation | Allahabad HC (2019)

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Court No. - 34

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Case :- SPECIAL APPEAL DEFECTIVE No. - 947 of 2019

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Appellant :- Nafeesa Respondent :- State Of U.P. And 4 Others Counsel for Appellant :- Uttar Kumar Goswami Counsel for Respondent :- C.S.C.,Mahesh Narain Singh

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Hon'ble Sudhir Agarwal,J. Hon'ble Rajeev Misra,J.

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Heard learned counsel for appellant and perused the record.

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This appeal is defective in favious ways. Firstly, appellant was not party in writ petition and there is no application seeking leave to appeal to prosecute this appeal.

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Secondly, orders challenged in writ petition are passed by Competent Authority cancelling fair price shop licence of petitionerrespondent-5, Mehraz Ali and dismissal order passed by Commissioner in appeal. These orders are passed by aforesaid authorities under the provisions of U.P Scheduled Commodities (Distribution) Order 2004 and against such orders no intra Court appeal under Chapter VIII Rule 5 of Allahabad High Court Rules, 1952 is maintainable as held by 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 :

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"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 :-

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(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.

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

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

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

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jurisdiction.

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(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.

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(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."

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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.

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

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"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:

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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;

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

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

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

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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

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(i) the tribunal,

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(ii) Court or

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(iii) statutory arbitrator

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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;

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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

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(i) the Government or

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(ii) any officer or

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(iii) authority,

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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.”

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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.

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Appeal is accordingly dismissed as not maintainable. Order Date :- 4.11.2019 AK

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Court No. - 34 Delay Condonation Application No. 1 of 2019

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Case :- SPECIAL APPEAL DEFECTIVE No. - 947 of 2019

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Appellant :- Nafeesa Respondent :- State Of U.P. And 4 Others Counsel for Appellant :- Uttar Kumar Goswami Counsel for Respondent :- C.S.C.,Mahesh Narain Singh

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Hon'ble Sudhir Agarwal,J. Hon'ble Rajeev Misra,J.

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Dismissed.

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For details, see order of date passed on memo of appeal. Order Date :- 4.11.2019 AK

Nafeesa v. State of U.P. and 4 Others

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Nafeesa v. State of U.P. and 4 Others

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