JUDGMENT Hon’ble Ashok Bhushan, J.—This Full Bench has been constituted to answer the following two questions referred by a Division Bench noticing conflict in two Division Benches of this Court : “ (1) Whether against the order/judgment of one judge passed in vacation exercising jurisdiction in cases which are cognizable by a Division Bench an special appeal under Chapter VIII Rule 5 of the Rules of the Court is maintainable? (2) Whether the Division Bench judgment in Allahabad Galla Tilhan Vyapari Sangh, 25, Muthiganj and others, 1985 UPLBEC 1064 (supra) or Division Bench judgment in State of U.P. and others v. Smt. Meera Sankhwar and others, 2004 (4) AWC 3162 , lays down the correct law?” 2. The facts of the case necessitating the reference briefly noted are that writ petition No. 26716 of 2008 was filed by the respondent No. 1 during summer vacations praying for order and direction in the nature of certiorari, quashing the notice dated 13/14th May, 2008 convening meeting of Kshetra Panchayat for consideration of no confidence motion against Pramukh of Kshetra Panchayat, Rang Bahadur Pandey. A mandamus was also sought for directing the opposite parties not to interfere in the working of the petitioner as Pramukh. The writ petition was a Misc. writ petition cognizable by a Division Bench. However, since the writ petition was filed during the summer vacations, it was taken up by a Hon’ble Single Judge, who had jurisdiction to hear such writ petitions during summer vacations under orders of Hon’ble the Chief Justice. A limited interim order was passed by Hon’ble Single Judge on 2.6.2008. The present Special Appeal under Chapter VIII Rule 5 of the Rules of the Court has been filed by Kuldeep Kumar Tripathi alongwith an application for Leave to Appeal, stating that the applicant had moved the no confidence motion signed by 72 members on the basis of which District Magistrate Allahabad issued notice dated 13/14th May, 2008 . 3. When the special appeal was being heard, a preliminary objection was raised by learned counsel for the respondents/writ petitioner that the order dated 2.6.2008 being an order passed by a Vacations Judge, exercising the jurisdiction of the Division Bench, the Special Appeal did not lie. Reliance was placed on a Division Bench judgment in Allahabad Galla Tilhan Vyapari Sangh, 25 Muthiganj and others v. Krishi Utpadan Mandi Samiti, Allahabad and others, 1985 UPLBEC 1064. Reliance was placed on a Division Bench judgment in Allahabad Galla Tilhan Vyapari Sangh, 25 Muthiganj and others v. Krishi Utpadan Mandi Samiti, Allahabad and others, 1985 UPLBEC 1064. The preliminary objection was refuted by learned counsel for the appellant relying on another Division Bench judgment of this Court in State of U.P. and others v. Smt. Meera Sankhwar and others, 2004 (4) AWC 3162 for the proposition that an order passed by learned Single Judge during vacations exercising the jurisdiction of Division Bench, does not become order of Division Bench and Special Appeal is maintainable. The Division Bench hearing the Special Appeal vide its detailed order dated 14.7.2008 referred above noted two questions for consideration of larger Bench. 4. We have heard Sri A.N. Tripathi, learned Senior Advocate appearing for the appellant and Sri M.C. Chaturvedi, learned Chief Standing Counsel assisted by Dr. Y.K. Srivastava, learned Standing Counsel for the respondents. 5. Before we proceed to consider various aspects of the issues raised, it is relevant to have quick look on the relevant provisions of Rules of the Court pertaining to jurisdiction of Single Judges, Division Benches and the provisions of Intra-Court Appeal (Letters Patent Appeal) termed as Special Appeal under Rules of the Court. Allahabad High Court Rules, 1952 referred to hereinafter as ‘High Court Rules’ made by High Court of Judicature at Allahabad in exercise of the powers conferred by Article 225 of the Constitution of India and all other powers enabling it in that behalf. Rule 3 which is interpretation clause provides : (1) In these rules unless the context otherwise requires “Bench” includes a Judge sitting alone; “Judge” means a Judge of the Court; “Special Appeal” means an appeal from the judgment of one Judge. Chapter V of the Rules of the Court deals with the jurisdiction of judges sitting alone or in Division Courts. Chapter V Rules 1, 2, 3, 4, 5 and 10 which are relevant for the present controversy are quoted below : “1. Constitution of Benches.—Judges shall sit alone or in such Division Courts as may be constituted from time to time and do such work as may be allotted to them by order of the Chief Justice or in accordance with his directions. 2. Constitution of Benches.—Judges shall sit alone or in such Division Courts as may be constituted from time to time and do such work as may be allotted to them by order of the Chief Justice or in accordance with his directions. 2. Jurisdiction of a Single Judge.—Except as provided by these Rules or other law, the following cases shall be heard and disposed of by a Judge sitting alone, namely : (i) a motion for the admission of a memorandum of appeal or cross objection or application or for ex parte interim order on an application; [(ii) (a) a civil [***] Second Appeal from a decree, including an appeal arising out of a case instituted in a revenue Court, in which the value of appeal for the purpose of jurisdiction does not exceed [one lakh] rupees; (aa) A Civil First Appeal instituted before [or after] the commencement of the U.P. Civil Laws Amendment Act of 1991 (U.P. Act No. 17 of 1991) from a decree including an appeal arising out of a case instituted in a revenue Court in which the value of appeal for the purpose of jurisdiction does not exceed five lakh rupees; First Appeal instituted before or after the commencement of the [U.P. Civil Laws Amendment Act of 1991 (U.P. Act No. 17 of 1991) from a decree including an appeal arising out of a case instituted in a revenue Court in which the value of appeal for the purpose of jurisdiction does not exceed [five lakh] rupees; (b) an appeal under Section 28 of the Hindu Marriage Act 1955; (c) any other civil appeal in which the value of the appeal does not exceed two lakh rupees : Provided that where an ad valorem Court-fee has been paid such value shall be deemed to be the amount on which such Court-fee has been paid; (iii) a civil revision; (iv) an application for the withdrawal of an appeal or application, or for a consent decree or order, which is uncontested or which is made in a case which can be heard under these Rules by a Judge sitting alone; (v) any other application which is not— (a) an application [***] under Section 5 of the Limitation Act 1963 in a case which cannot be heard by a Judge sitting alone; (b) [***] (c) an application 53 other than an application for interim order to which Chapter XXII, Part IV applies; (d) an application other than an application for interim order which by these Rules or other law is required to be heard by a Bench of two or more Judges; (e) an application other than an application for interim order under Chapter IX, Rule 10; or (f) [***] (vi) a suit or a proceeding in the nature of a suit coming before the Court in the exercise of its ordinary or extraordinary original civil testamentary or matrimonial jurisdiction including a proceeding under the Indian Trusts Act 1882 the Companies Act 1956 or the Indian Patents and Designs Act 1911; (vii) a criminal appeal, application or reference except— (a) an appeal or reference in a case In which a sentence of death or imprisonment for life has been passed from the stage of admission including consideration of bail onwards; (b) “an appeal under Section 378 of the Code of Criminal Procedure, 1973 from an order of acquittal in respect of an offence for which the maximum punishment is either life imprisonment or death.” (c) (***) (d) a case in which notice has been issued under 58 Section 401 of the Code of Criminal Procedure, 1973 to an accused person to appear and show cause why his sentence should not be enhanced; (e) [***] (f) an application to which Chapter XXI, Part N applies; (viii) a case coming before the Court in the exercise of its ordinary or extraordinary original criminal jurisdiction; (ix) an appeal or revision from an order passed under Sections 340, 341 or 343 of the Code of Criminal Procedure, 1973 : Provided that : (a) the Chief Justice may direct that any case or class of cases which may be heard by a Judge sitting alone shall be heard by a Bench of two or more Judges or that any case or class of cases which may be heard by a Bench of two or more Judges, by a Judge sitting alone; (b) a Judge may, if he thinks fit, refer a case which may be heard by a Judge sitting alone or any question of law arising therein for decision to a larger Bench; and (c) a Judge before whom any proceeding under the Indian Trusts Act 1882, the Companies Act, 1956 or the Patents and Designs Act 1911, is pending may with the sanction of the Chief Justice, obtain the assistance of one or more other Judges for the hearing and determination of such proceeding or of any question or questions arising therein. 3. Case to be decided by three Judges.—A reference under Section 57 or 60 of the Indian Stamp Act, 1899 shall be heard and disposed of by a Bench of not less than three Judges. 4. Proceedings under the Legal Practitioners Act 1879 : (1) A proceeding under Legal Practitioners Act, 1879, against a pleader or Mukhtar with respect to any misconduct or his conviction for any criminal offence shall be heard and disposed of by a Bench of not less than two Judges. (2) An enquiry under Section 36 of the Legal Practitioners Act 1879, shall be made by Bench of not less than two Judges. 5. Cases withdrawn under Art. 228 of the Constitution.—A case withdrawn from a Court subordinate to the Court under Art. 228 of the Constitution shall be heard by a Bench of two or more Judges specially appointed by the Chief Justice.” “10. Judge on duty during vacation.—(1) Criminal work shall continue to be dealt with during the vacation by such Judges as may be appointed for the purpose by the Chief Justice. They may also exercise original, appellate, revisional, civil or writ jurisdiction vested in the Court in fresh matters which in their opinion require immediate attention. Such jurisdiction may be exercised even in cases which are under the Rules cognizable by two or more Judges, unless the case is required by any other law to be heard by more than one Judge. (2) Subject to any general or Special Order of the Chief Justice, the senior most vacation Judge at Allahabad or Lucknow, as the case may be, shall in the absence of the Chief Justice, exercise jurisdiction at Allahabad or Lucknow, as the case may be, in connection with the arrangement of Benches, listing of cases and other like matters. “ 6. Chapter VIII which deals with Misc. provisions contains Special Appeal in Rule 5. Chapter VIII Rule 2 provides that any function which may be performed by the Court in the exercise of its original or appellate jurisdiction may be performed by any Judge or by any Division Court appointed or constituted for such purpose in pursuance of Article 225 of the Constitution. Chapter VIII Rules 2 and 5 are quoted below : “2. Chapter VIII Rule 2 provides that any function which may be performed by the Court in the exercise of its original or appellate jurisdiction may be performed by any Judge or by any Division Court appointed or constituted for such purpose in pursuance of Article 225 of the Constitution. Chapter VIII Rules 2 and 5 are quoted below : “2. Powers of a Single Judge and Division Court.—Any function which may be performed by the Court in the exercise of its original or appellate jurisdiction may be performed by any Judge or by any Division Court appointed or constituted for such purpose in pursuance of Article 225 of the Constitution.” “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 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.” 7. Chapter IX deals with appeals and applications. Chapter IX Rule 10(i) is quoted as below : “10. Special Appeal.—(i) A person desiring to prefer a Special Appeal from the judgment of one Judge passed in the’ exercise of original jurisdiction shall present a duly stamped memorandum of appeal accompanied by a copy of the judgment appealed from within thirty days from the date of the judgment The time requisite for obtaining the copy shall be excluded in computing the said period of thirty days.” 8. The provisions as quoted above, provides that Judges shall sit alone or in Division Courts as may be constituted from time to time and do such work as may be allotted to them by order of the Chief Justice or in accordance with’ his directions. Chapter V Rule 2 provides jurisdiction of a Single Judge. The proviso to Rule 2 also provides that Hon’ble the Chief may direct that any case or class of cases which may be heard by a Judge sitting alone shall be heard by a Bench of two or more Judges or that any case or class of cases which may be heard by a Bench of two or more Judges, by a Judge sitting alone. A perusal of Chapter V Rule 10 also indicates that during summer vacations, the judges appointed for the purpose by the Hon’ble the Chief Justice may also exercise the original, appellate, revisional, civil or writ jurisdiction vested in the Court in fresh matters, even in the cases which are under the Rules cognizable by two or more Judges, unless the case is required by any other law to be heard by more than one Judge. The provisions dearly indicate that during summer vacations, a Judge sitting alone can exercise jurisdiction as appointed by Hon’ble the Chief Justice even in cases which are under rules cognizable by two or more Judges. 9. Before we proceed to examine the submissions in detail, it is useful to refer the legislative history of the High Court, jurisdiction exercised by Single Judge, Division Benches, Power of the Chief Justice and the extent of the power of the Chief Justice to allocate the jurisdiction to Judges of the High Court. 10. The High Court Act, 1861, which received the Royal assent on 6.8.1961, the parent legislation which authorised the establishment of the High Court of Judicature in India. 10. The High Court Act, 1861, which received the Royal assent on 6.8.1961, the parent legislation which authorised the establishment of the High Court of Judicature in India. Section 13 of the Act, 1861 provided as follows : “Subject to any laws or regulations which may be made by the Governor-General in Council, the High Courts established in any Presidency under this Act may, by its own rules, provide for the exercise, by one or more Judges or by Division Courts constituted by two or more Judges of the said High Court of the original and appellate jurisdiction vested in such Court, in such manner as may appear to such Court to be convenient for the due administration of justice.” 11. The High Court of Judicature at Allahabad was established by Letters Patent of her majesty dated March 17, 1866. The Letters Patent were subject to Legislative power of the Governor General in Legislative Council and also the Governor General in Council. The Government of India Act, 1915 Section 108 provided as follows : “108. (1) Each High Court may by its own rules provide as it thinks fit for the exercise, by one or more Judges or by division Courts constituted by two or more Judges of the High Court of the original and appellate jurisdiction vested in the Court. (2) The Chief Justice of each High Court shall determine what Judge in each case is to sit alone, and what Judges of the Court, whether with or without the Chief Justice, are to constitute the several division Courts.” 12. The Government of India Act, 1935 repealed Government of India Act 1915 and re-enacted with modification. Section 223 of the said Act reads as follows : “223. The Government of India Act, 1935 repealed Government of India Act 1915 and re-enacted with modification. Section 223 of the said Act reads as follows : “223. Subject to the provisions of this Part of this Act, to the provisions of any order in Council made under this or any other Act, to the provision of any order made under the Indian Independence Act, 1947, and to the provisions of any Act of the appropriate Legislature enacted by virtue of powers conferred on that Legislature by this Act the jurisdiction of, and the law administered in, any existing High Court, and the respective powers of the judges thereof in relation to the administration of justice in the Court, including any power to make rules of Court and to regulate the sittings of the Court and of members thereof sitting alone or in division Courts, shall be the same as immediately before the establishment of the Dominion.” 13. Clause 10 of the Letters Patent provided for the appeal to the High Court from a judgment of one Judge. Clause 27 provides for power of Single Judge and Division Courts. Clauses 10 and 27 are quoted herein below : “10. Clause 10 of the Letters Patent provided for the appeal to the High Court from a judgment of one Judge. Clause 27 provides for power of Single Judge and Division Courts. Clauses 10 and 27 are quoted herein below : “10. And we do further ordain that an appeal shall lied to the said High Court of Judicature at Allahabad from the judgment (not being a judgment passed in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court and not being an order made in the exercise of revisional jurisdiction not being a sentence or order passed or made in the exercise of the power of superintendence under the provisions of Section 107 of the Government of India Act or in the exercise of Criminal jurisdiction) of one Judge of the said High Court or one Judge of any Division Court, pursuant to Section 108 of the Government of India Act and that notwithstanding anything hereinbefore provided an appeal shall lie to the said High Court from a judgment of one Judge of the said High Court or one Judge of any Division Court, pursuant to Section 108 of the Government of India Act made on or after the first day of February one thousand nine hundred and twenty-nine in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court, where the Judge who passed the judgment declares that the case is a fit one for appeal; but that the right of appeal from other judgments of Judges of the said High Court or of such Division Court shall be to us. Our Heirs or successors or Our on Their Privy Council, as hereinafter provided.” “27. Our Heirs or successors or Our on Their Privy Council, as hereinafter provided.” “27. And We do hereby declare that any function which is hereby directed to be performed by the said High Court of Judicature at Allahabad in the exercise of its original or appellate jurisdiction may be performed by any Judge or by any Division Court thereof appointed or constituted for such purpose in pursuance of Section one hundred and eight of the Government of India Act 1915, and if such Division Court is composed of two or more Judges and the Judges are divided in opinion as to the decision to be given on any point such point shall be decided according to the opinion of the majority of the Judges if there shall be a majority but if the Judges should be equally divided they shall state the point upon which they differ and the case shall then be heard upon that point by one or more of the other Judges and the point shall be decided according to the opinion of the majority of the Judges, who have heard the case including those who first heard it.” 14. The Constitution of India provides that jurisdiction of law administered in by any High Court and the respective powers of the Judges including the power to make rules of Court and to regulate the sitting of the Court and principles thereof sitting alone or in Division Courts, shall be same as immediately before the commencement of the Constitution. Article 225 of the Constitution of India is quoted as below : “225. Article 225 of the Constitution of India is quoted as below : “225. Jurisdiction of existing High Courts.—Subject to the provisions of this Constitution and to the provisions of any law of the appropriate Legislature made by virtue of powers conferred on that Legislature by this Constitution, the jurisdiction of, and the law administered in, any existing High Court, and the respective powers of the Judges thereof in relation to the administration of justice in the Court, including any power to make rules of Court and to regulate the sittings of the Court and of members thereof sitting alone or in Division Courts, shall be the same as immediately before the commencement of this Constitution : Provided that any restriction to which the exercise of original jurisdiction by any of the High Courts with respect to any matter concerning the revenue or concerning any act ordered or done in the collection thereof was subject immediately before the commencement of this Constitution shall no longer apply to the exercise of such jurisdiction.” 15. The Rules of the Court, 1952 have been framed in exercise of the powers under Article 225 of the Constitution. Hon’ble the Chief Justice of the Court is master of rolls and judges sitting alone or in Division Courts of two or more exercising the jurisdiction as allotted to them by Hon’ble the Chief Justice, is a scheme which flows from the above noted provisions. Although the rules have been framed as to what matters shall be heard by Single Judge but the Chief Justice is empowered under the Chapter V Rule 2 that any case or class of cases which may be heard by a Judge sitting alone shall be heard by a Bench of two or more Judges or that any case or class of cases which may be heard by a Bench of two or more Judges, by a Judge sitting alone. Chapter V Rule 10 is expression of the same very power. The vacation Judges appointed for the purpose can exercise jurisdiction in cases which are required to he heard by more than one Judge. There is no dispute of the fact that Hon’ble Single Judge who entertained the writ petition during vacations on 2.6.2008 was appointed by Hon’ble the Chief Justice for the purpose of hearing a writ petition which was otherwise cognizable by Division Bench. 16. There is no dispute of the fact that Hon’ble Single Judge who entertained the writ petition during vacations on 2.6.2008 was appointed by Hon’ble the Chief Justice for the purpose of hearing a writ petition which was otherwise cognizable by Division Bench. 16. Under Chapter VIII Rule 5 of the Rules of the Court which provides for special appeal, the appeal is provided to the Court from a judgment of one Judge. The issue which has to be answered by us is as to whether against the order dated 2.6.2008, passed by a vacation Judge sitting alone, special appeal under Chapter VIII Rule 5 shall lie or special appeal is not competent since the jurisdiction exercised by the Hon’ble Single Judge was of the Division Bench and the order dated 2.6.2008 is to be assumed to be order of Division Bench. The Division Bench judgment which has been relied for the proposition that special appeal is not maintainable against an order of Judge sitting alone during summer vacations exercising jurisdiction of Division Bench is a judgment in Allahabad Galla Tilhan Vyapari Sangh v. Krishi Utpadan, 1985 UPLBEC 1064 (supra). The Division Bench in the said case considered sub-rule (1) of Rule 10 of Chapter V. The writ petition of the case was otherwise cognizable by Division Bench but it was presented during summer vacations before Vacations Judge sitting singly. The Division Bench after noticing sub-rule (1) of Rule 10 of Chapter V gave following reasons in paragraph 2 for taking the view that special appeal was not maintainable: “2. Apart from the Rules of Court no other law e.g. Section 57(2) of the Stamp Act which requires a reference under that Act to be heard by three Judges has been brought to our notice which required such a writ petition to be heard by more than one Judge. Under the Rules of Court, the jurisdiction which the learned Vacation Judge exercised in deciding the writ petition by the order appealed against was, however, a jurisdiction which ordinarily was exercisable only by a Division Bench. Under the Rules of Court, the jurisdiction which the learned Vacation Judge exercised in deciding the writ petition by the order appealed against was, however, a jurisdiction which ordinarily was exercisable only by a Division Bench. In view of the provisions contained in Chapter 1I, Rule 10 of the Rules of the Court referred to above it will, therefore, have to be assumed that even though the order appealed against was passed by a learned Single Judge it was passed by a Division Bench, the same having been passed by him as vacations Judge, for otherwise a writ petition cognizable by a Division Bench could not be entertained by a Single Judge. As a necessary corollary no special appeal will lie against that order before another Division Bench. In this connection reference may be made to following observations of Lord Asquith in East End Dwellings Consolidation Officer. Ltd. v. Finsbury Borough Council, 1952 Appeal Cases 109 Page 132 : “If you are bidden to treat an imaginary state of affairs as real you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative State of affairs had in fad existed, must inevitably have flowed from or accompanied it.....The Statute says that you must imagine a certain state of affairs, it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs.” Reference may also be usefully made to the decision of the Supreme Court in Bengal Immunity Consolidation Officer v. State of Bihar, AIR 1955 SC 661 , wherein paragraph 33 it was held : “When we apply a fiction all we do is to assume that the situation created by the fiction is true. Therefore, the same consequences must flow from the fiction as would have flown had the facts supposed to be true been the actual facts from the start.” 17. Therefore, the same consequences must flow from the fiction as would have flown had the facts supposed to be true been the actual facts from the start.” 17. The reason given by Division Bench for coming to the conclusion is contained in following one line : “In view of the provisions contained in Chapter V Rule 10 of the Rules of the Court referred to above it will, therefore, have to be assumed that even though the order appealed against was passed by a learned Single Judge it was passed by a Division Bench, the same having been passed by him as vacations judge, for otherwise a writ petition cognizable by a Division Bench could not be entertained by a Single Judge.” 18. The Division Bench also relied on two judgments, one of the House of Lords 1952 (2) A.C. 109 East End Dwellings Co. LD. v. Finsbury Borough Council and another judgment of the Apex Court in Bengal Immunity Co. v. State of Bihar, AIR 1955 SC 661 . The Division Bench proceeded to decide the controversy taking the view that by legal fiction it has to be assumed that the order passed by Hon’ble Single Judge during vacations is that of a Division Bench. 19. The two cases relied by Division Bench were cases of legal fiction. It is relevant to note the cases relied by Division Bench in detail. In East End Dwelling Co. LD. v. Finsbury Borough Council, the provisions of Section 53 of Town and Country Planning Act, 1947 came up for consideration. 19. The two cases relied by Division Bench were cases of legal fiction. It is relevant to note the cases relied by Division Bench in detail. In East End Dwelling Co. LD. v. Finsbury Borough Council, the provisions of Section 53 of Town and Country Planning Act, 1947 came up for consideration. Section 53 of the aforesaid Act provided as follows : “(1) Where an interest in land the value of which is to be ascertained in accordance with the provisions of Section 51 of this Act is an interest in a hereditament or part of a hereditament, which has sustained war damage, and any of that damage has not been made good at the date of the notice to treat, then if the appropriate payment under the War Damage Act, 1943, would, apart from the compulsory purchase or apart from any direction given by the Treasury under paragraph (b) of subSection (2) of Section 20 of that Act, be a payment of cost of works—(a) the value of the interest for the purposes of the compensation payable in respect of the compulsory purchase shall, subject to the provisions of this Section, be taken to be the value which it would have If the whole of the damage had been made good before the date of the notice to treat; and (b) the right to receive any value payment or share of a value payment which, under the War Damage Act, 1943, is payable in respect of the interest which is compulsorily acquired (including any interest payable thereon) shall, notwithstanding anything in that Act, vest in the person by whom the interest is so acquired.” 20. The above provision, contemplated taking of the value which it would have if the whole of the damage had been made good before the date of the notice to treat. The provision clearly assumed certain situation for determining the valuation, which was a case of a legal fiction. Lord Asquith whose opinion was relied by the Division Bench laid down following in his opinion : “If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it. One of these in this case is emancipation from the 1939 level of rents. The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs.” 21. The opinion of House of Lord, Lord Asquith was also relied in Bengal Immunity case (supra), the Constitution Bench judgment of the Apex Court. The Bengal Immunity Company Ltd. case was a case where Article 286 of the Constitution of India specially explanation which contained a deeming provision came for consideration. Article 286 provides that no law of a State shall impose, or authorise the imposition of a tax on the sale or purchase of the goods where such sale or purchase takes place (a) out side the State or (b) in the course of the import of the goods into, or export of the goods out of, the territory of India. 22. The explanation provided a deeming clause for the purpose of such clause (a). “Explanation.—For the purposes of sub-clause (a), a sale or purchase shall be deemed to have taken place in the State in which the goods have actually been delivered as a direct result of such sale or purchase for the purpose of consumption in that State, notwithstanding the fact that under the general law relating to sale of goods the property in the goods has by reason of such sale or purchase passed in another State. (2) Except in so far as Parliament may by law otherwise provide, no law of a State shall impose, or authorise the imposition of, a tax on the sale or purchase of any goods where such sale or purchase take place in the course of inter-State trade or commerce : Provided that the President may by order direct that any tax on the sale or purchase of goods which has being lawfully levied by the Government of any State immediately before the commencement of this Constitution shall, notwithstanding that the imposition of such tax is contrary to the provisions of this clause, continue to be levied until the thirty-first day of March, 1951. (3) No law made by the Legislature of a State imposing, or authorising the imposition of, a tax on the sale or purchase of any such foods as have been declared by Parliament by law to be essential for the life of the community shall have effect unless it has been reserved for the consideration of the President and has received his assent.” 23. Justice S.R. Das C.J. in his opinion in paragraph 31 laid down following : 31. As we have already stated, we do not desire, on this occasion, to express any opinion on the validity claimed for or the infirmities imputed to any of these several views, for, in our opinion, it is not necessary to do so for disposing of this appeal. Whichever view is taken of the Explanation it should be limited to the purpose the Constitution makers had in view when they incorporated it in Cl. (1). It is quite obvious that it created a legal fiction. Legal fictions are created only for some definite purpose. Here the avowed purpose of the Explanation is to explain what an outside sale referred to in sub-clause (a) is. The judical decisions referred to in the dissenting judgment in ‘State of Travancore-Cochin v. Shanmugha Vilas Cashew Nut Factory (U)’ (supra) at pp. 342 and 343 and the case of - “East End Dwellings Co. Ltd. v. Finsbury Borouh Council’, 1952 AC 109 at p. 132 (Z) clearly indicate that a legal fiction is to be limited to the purpose for which it was created and should not be extended beyond that legitimate field. It should further be remembered that the dominant, if not the sole, purpose of Art. 286 is to place restrictions on the legisiative powers of the States, subject to certain conditions in some cases and with that end in view Art. 286 imposes several bans on the taxing power of the States in relation to sales or purchases viewed from different angles and according to their different aspects. In some cases the ban is absolute as, for example, with regard to outside sales covered by clause (1)(a) read with the Explanation, or with regard to imports and exports covered by clause (1)(b) and in some cases it is conditional, e.g., in the cases of inter-State sales or purchases under clause (2) which is in terms, made subject to the proviso thereto and also to the power of Parliament to lift the ban. Again, in some cases the bans may overlap but nevertheless, they are distinct and independent of each other. The operative provisions of the several parts of Art, 286, namely, clause (1)(a), clause (1)(b), clause (2) and clause (3) are manifestly intended to deal with different topics and, therefore, one cannot be projected or read into another. On a careful and anxious consideration of the matter in the light of the fresh arguments advanced and discussions held on the present occasion be are definitely of the opinion that the Explanation in clause (1)(a) cannot be legitimately extended to clause (2) either as an exception or as a proviso thereto or read as curtailing or limiting the ambit of clause (2). Indeed, in ‘State of Bombay v. United Motors (India) Ltd. (B)’ (supra) at p. 258 and again at p. 259 the majority judgment also accepted the position that the Explanation was not an exception or proviso either to clause (1)(a) or to clause (2). If, therefore, the Explanation cannot be read into clause (2) because of the express language of the Explanation and also because of the different in the subject-matter of the operative provisions of the two clauses, then it must follow that, except in so far as Parliament may by law provide otherwise, no State law can impose or authorise the imposition of any tax on sales or purchases when such sales or purchases take place in the course of inter-State trade or commerce and irrespective of whether such sales or purchases do or not fall within the Explanation. It is not necessary, for the purpose of this appeal, to enter upon a discussion as to what is exactly meant by inter-State trade or commerce or by the phrase “in the course of” for, it is common ground that the sales or purchases made by the appellant company Which are sought to be taxed by the State of Bihar actually took place in the course of inter-State trade or commerce. Parliament not having by law otherwise provided, no State law can therefore, tax these sales or purchases, that is to say, Bihar cannot tax by reason of Clause (2) although they fall within the Explanation and other States cannot tax by reason of both Clause (1)(a) read with the Explanation and Clause (2). This conclusion leads us now to consider the arguments by which the respondent State and the intervening states which support the respondent State seek to get over this position.” 24. The Apex Court referred the decision of the House of Lords in East End Dwelling Co. Ltd. stating that it clearly indicate that legal fiction is limited to the purpose for which it was created and should not be extended beyond that legitimate field. Again in paragraph 33 following was laid down : “We find no cogent reason in support of the argument that a fiction created for certain definitely expressed purposes, namely, the purposes of Clause (1)(a) can legitimately be used for the entirely foreign and collateral purpose of destroying the inter-State character of the transaction and converting it into an intra-State sale or purchase. Such metamorphosis appears to us to be beyond the purpose and purview of Clause (1) (a) and the Explanation thereto. When we apply a fiction all we do is to assume that the situation created by the fiction is true. Therefore, the same consequences must flow from the fiction as would have flown had the facts supposed to be true been the actual facts from the start.” 25. Bhagawati J. taking the same view laid down following in paragraph 107 : “107. As to reason (5) : the argument totally ignores the purpose and efficacy of a legal fiction. A legal fiction pre-supposes the correctness of the state of facts on which it is based and all the consequences which flow from that state of facts have got to be worked out to their logical extent. As to reason (5) : the argument totally ignores the purpose and efficacy of a legal fiction. A legal fiction pre-supposes the correctness of the state of facts on which it is based and all the consequences which flow from that state of facts have got to be worked out to their logical extent. But due regard must be had in this behalf to the purpose for which the legal fiction has been created. If the purpose of this legal fiction contained in the Explanation to Article 286 (1) (a) is solely for the ‘purpose of sub-clause (a) as expressly stated it would not be legitimate to travel beyond the scope of that purpose and read into the provision any other purpose howsoever attractive it may be.” 26. Both the judgments relied by Division Bench in Allahabad Galla Tilahan Vyapari (supra) where the case of express legal fictions, which had came up for consideration, the Division Bench applying the aforesaid two decisions assumed that by legal fiction, the order passed by learned Single Judge during vacation is to be treated as order of Division Bench. The provisions of Chapter V Rule 10 of the Rules of the Court does not indicate any legal fiction in exercise of the jurisdiction by one judge in a writ petition cognizable by Division Bench rather Single Judge, who exercises jurisdiction during vacations is appointed for the purpose by the Chief Justice. Single Judge thus is vested with the jurisdiction by the Chief Justice to hear the writ petitions cognizable by Division Bench. Thus, there is no occasion of any deeming clause or assuming a, legal fiction nor any provision of the Rules of the Court or any other law provides for legal fiction. Legal fiction is the legislative device which is clearly expressly provided in any enactment for different purpose. Normally legal fiction is not inferred by construction unless the provisions so indicate. In view of the above, the very basis on which the Division Bench in Allahabad Galla Tilhan Vyapari (supra) proceeded to assume the legal fiction was unfounded. The two cases which were relied by the Division Bench were cases of express legal fiction created by Act of 1947 and Article 286 of the Constitution of India respectively. 27. The Apex Court had clearly laid down in Bengal Immunity case (supra) that legal fiction are created only for some definite purpose. The two cases which were relied by the Division Bench were cases of express legal fiction created by Act of 1947 and Article 286 of the Constitution of India respectively. 27. The Apex Court had clearly laid down in Bengal Immunity case (supra) that legal fiction are created only for some definite purpose. In the present case, learned Single Judge exercising the jurisdiction during vacations in writ petition cognizable by Division Bench is authorised to do so by order of Hon’ble the Chief Justice. The purpose of any assumed fiction can at best confine to exercise of jurisdiction by one judge in a case which was cognizable by Division Bench. The assumption of any legal fiction cannot be for any other purpose. There can be no assumption that order passed by Hon’ble Single Judge during vacation is to be treated as an order of Division Court. The Apex Court in several cases after Bengal Immunity case (supra) has laid down that legal fiction cannot be assumed beyond the purpose for which it was created. The Apex Court in K.S. Dharmadatan v. Central Government and others, (1979) 4 SCC 204 had occasion to consider the legal fiction. Following was laid down by the Apex Court in paragraphs 11, 12, 13 & 14 : “11. In the case of Commissioner of Sales Tax, Uttar Pradesh v. Modi Sugar Mills Ltd., (1961) 2 SCR 189 : AIR 1961 SC 1047 while laying down the principles on the basis of which a deeming provision should be construed this Court observed as follows : “A legal fiction must be limited to the purposes for which it has been created and cannot be extended beyond its legitimate field.” “12. Similarly in the case of Braithwaite and Co. (India) Ltd. v. Employees’ State Insurance Corporation, (1968) 1 SCR 771 : AIR 1968 SC 413 this Court further amplifying the principle of the construction of a deeming provision observed thus : “A legal fiction is adopted in law for a limited and definite purpose only and there is no justification for extending it beyond the purpose for which the legislature adopted it.” In the Bengal Immunity Co. Ltd. v. State of Bihar, (1955) 2 SCR 603 : AIR 1955 SC 661 this Court pointed out that “explanation should be limited to the purpose the Constitution-makers had and legal fictions are created only for some definite purpose.” 13. Ltd. v. State of Bihar, (1955) 2 SCR 603 : AIR 1955 SC 661 this Court pointed out that “explanation should be limited to the purpose the Constitution-makers had and legal fictions are created only for some definite purpose.” 13. In the case of Commr. of Income tax Bombay City v. Elphinstone Spinning and Weaving Mills Co. Ltd., 40 ITR 142 : AIR 1960 SC 1016 this Court observed as follows : “As we have already stated, this fiction cannot be carried further than what it is intended for. 14. Thus, it is well settled that deeming fiction should be confined only for the purpose for it is meant. In the instant case, the order of the President reinstating the appellant and creating a legal fiction regarding the period of suspension must be limited only so far as the period of and the incidents of suspension were concerned and could not be carried too far so as to project it even in cases where actions had already been taken and closed. In other words, the position seems to be that at the time when actual cognizance by the Court was taken the appellant had ceased to be a public servant having been removed from service. If some years later he had been reinstated that would not make the cognizance which was validly taken by the Court in October, 1970 a nullity or render it nugatory so as to necessitate the taking of a fresh sanction. We, therefore, entirely agree with the view taken by the High Court that in the facts and circumstances of the present case legal fiction arising out of the Presidential Order cannot be carried to nullify the order of cognisance taken by the Special Judge. The argument of the learned counsel for the appellant in therefore, overruled. No other point was pressed before us. The appeal being without merit is accordingly dismissed. The Special Judge would now hear the arguments of the• parties and dispose of the case as expeditiously as possible. Let the records be sent back to the Special Judge immediately.” 28. Again the Apex Court in State of Maharashtra v. Laljit Rajshi Shah and others, (2000) 2 SCC 699 laid down that by construing the fiction, it is not to be extended beyond the purpose for which it was created or beyond the language of the Section for which it was created. Again the Apex Court in State of Maharashtra v. Laljit Rajshi Shah and others, (2000) 2 SCC 699 laid down that by construing the fiction, it is not to be extended beyond the purpose for which it was created or beyond the language of the Section for which it was created. Following was laid down in paragraph 6 : “It is a well-known principle of construction that in interpreting a provision creating a legal fiction, the Court is to ascertain for what purpose the fiction is created, and after ascertaining this, the Court is to assume all those facts and consequences which are incidental or inevitable corollaries to giving effect to the fiction. But in so construing the fiction it is not to be extended beyond the purpose for which it is created, or beyond the language of Section by which it is created. A legal fiction in terms enacted for the purposes of one Act is normally restricted to that Act and cannot be extended to cover another Act.” 29. There are other reasons apart from what has been stated above, in support of the view that the order passed by vacation Judge sitting singly exercising the jurisdiction of Division Bench cannot be treated an order of Division Bench. As noted above, Section 13 of the Charters Act, 1861 provided that High Court may, provide for the exercise, by one or more Judges or by Division Courts constituted by two or more judges of the original and appellate jurisdiction vested in such Court. The exercise of power by Single Judge and Division Court was also contemplated in clause 27 of the Letters Patent, as quoted above. 30. Chapter VIII Rule 2 of the Rules of the Court also provided that any function which may be performed by the Court in the exercise of its original or appellate jurisdiction may be performed by any Judge or by any Division Court appointed or constituted for such purpose. The sitting of the Court singly, in Division Court containing more than two Judges have been contemplated under the Rules of the Court. Clause 10 of the Letters Patent contemplated Letters Patent appeal to the same High Court against the judgment of one Judge. Chapter VIII Rule 5 as extracted above, also provides that appeal shall lie to the Court from a judgment of one Judge. Clause 10 of the Letters Patent contemplated Letters Patent appeal to the same High Court against the judgment of one Judge. Chapter VIII Rule 5 as extracted above, also provides that appeal shall lie to the Court from a judgment of one Judge. Thus, the right of appeal has been given against the judgment of one Judge. The one Judge exercising the jurisdiction as a vacations Judge in a writ petition which was cognizable by a Division Bench shall still remain one Judge. One judge exercising of such jurisdiction cannot be held to be Division Court. The Division Court is a Court which consists of more than one Judge. The distinction between one Judge and Division Court is number of Judges constituting the Bench. The appeal has been provided against the judgment of one Judge to the same High Court to a Division Bench with the object that a Division Court may hear the appeal against one Judge. 31. Apart from exercise of jurisdiction by one Judge during vacation in a case cognizable by Division Bench, under Chapter V Rule 2 proviso (a) the Chief Justice is empowered to direct that any case or class of cases which may be heard by a judge sitting alone shall be heard by a Bench of two or more Judges or that any case or class of cases which may be heard by a Bench of two or more Judges, by a Judge sitting alone. The judgment rendered by such Judge sitting alone shall remain Judgment by one Judge. A plain reading of the proviso indicates that cases to be heard by Bench can be directed to be heard by a Judge sitting alone. Judge sitting alone in such circumstance, will remain one Judge, can it be said that in such a circumstance where Hon’ble the Chief Justice in exercise of power under Chapter V Rule 2 proviso (a) has made such a nomination, the Single Judge deciding a case cognizable by Division Bench shall be treated to have been decided by a Division Bench? The express language of the proviso reveals such construction by express word “a Judge sitting alone”. Whether special appeal against such a judgment shall be entertainable by a Division Bench? The express language of the proviso reveals such construction by express word “a Judge sitting alone”. Whether special appeal against such a judgment shall be entertainable by a Division Bench? Thus, the scheme of the rules as delineated in Chapter V Rule 2 and Chapter V Rule 10 clearly indicates that judgment rendered by such Judge shall remain judgment by one Judge. The definition of Special Appeal as contained in interpretation clause Rule 3 defines Special Appeal as an appeal from the judgment of one Judge. 32. The next reason for taking the aforesaid view is further to be noted. Chapter VIII Rule 5 of the Rules of the Court contained a provision excluding the appeal in large number of cases. Some of the exclusion of appeal was made under the Letters Patent itself and some of the exclusions were made by the U.P. High Court (Abolition of Letter Patent) Appeal Act 1962 as amended in 1981. A Division Bench of this Court had occasion to consider (of which one of us was a member, Hon. Ashok Bhushan, J.) in Vajara Yojna Seed Farm Kalyanpur v. Presiding Officer, Labour Court-II U.P. Kanpur, (2003) 1 UPLBEC 496 the various categories of appeals which were excluded from Chapter VIII Rule 5. Following was laid down in paragraph 64 of the judgments. “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 : (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. (ii) Judgment of one Judge in the exercise of revisional jurisdiction. (iii) Judgment ‘of one judge made in the exercise of its power of superintendence. (iv) Judgment of one Judge made in the exercise of criminal jurisdiction. (ii) Judgment of one Judge in the exercise of revisional jurisdiction. (iii) Judgment ‘of one judge made in the exercise of its power of superintendence. (iv) Judgment of one Judge made in the exercise of criminal jurisdiction. (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 of 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. (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." 33. The Constitution Bench of this Court had occasion to consider the provisions of Section 100-A as inserted in 1976 and amended in 2002 regarding exclusion of Letters Patent Appeal in P.S. Sathappan v. Andhra Bank Ltd. and others, (2004) 11 SCC 672 . The Apex Court laid down in the said case that when the Legislature wanted to exclude Letters Patent appeal it specifically did so. Following was observed by the Apex Court in paragraph 30 : "It is thus to be seen that when the Legislature wanted to exclude a Letters Patent Appeal is specifically did so. The words used in Section 100A are not by way of abundant caution. By the Amendment Acts of 1976 and 2002 a specific exclusion is provided as the Legislature knew that in the absence of such words a Letters Patent Appeal would not be barred The Legislature was aware that it had incorporated the saving clause in Section 104(1) and incorporated Section 4 in the CPC Thus now a specific exclusion was provided. By the Amendment Acts of 1976 and 2002 a specific exclusion is provided as the Legislature knew that in the absence of such words a Letters Patent Appeal would not be barred The Legislature was aware that it had incorporated the saving clause in Section 104(1) and incorporated Section 4 in the CPC Thus now a specific exclusion was provided. After 2002, Section 100A reads as follows : “100-A. No further appeal in certain cases.—Notwithstanding anything contained in any Letters Patent for any High Court or in any other instrument having the force of law or in any other law for the time being in force, where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court no further appeal shall lie from the judgment and decree of such Single Judge.” To be noted that here again the Legislature has provided for a specific exclusion. It must be stated that now by virtue of Section 100A no Letters Patent Appeal would be maintainable. However, it is an admitted position that the law which would prevail would be the law at the relevant time. At the relevant time neither Section 100A nor Section 104(2) barred a Letters Patent Appeal.” 34. In the present case, certain category of special appeals have been excluded from the purview of Chapter VIII Rule 5 but there is no exclusion with regard to judgment of one Judge deciding a writ petition which is to be entertained by Division Bench. Had the Legislature intended to exclude the said appeal also, the same could have been specifically provided. 35. When the Right of appeal has been conferred to the High Court against the judgment of one Judge, the exclusion of the right to appeal is not to be readily infer. The exclusion of right to appeal has to be specifically provided for or should flow from necessary implication. This is another reason for us to take the view that appeal against the judgment of one Judge passed during vacations exercising the jurisdiction in a case of Division Bench is maintainable. 36. There is one more reason which supports our view. The law of precedent is well established in our country. The principle of precedent is same for all judicial Court. 36. There is one more reason which supports our view. The law of precedent is well established in our country. The principle of precedent is same for all judicial Court. Constitution Bench in (2002) 4 SCC 578 , P. Ramachandra Rao v. State of Karnataka, while considering the doctrine of precedent laid down that precedent which has crystallised into a rule of law is that a bench of lesser strength is bound by the view expressed by a Bench of larger strength. Following was laid down by the Apex Court : “The other reason why the bars of limitation in Common cause (I), Common cause (II) and Raj Deo Sharma (I) and Raj Deo Sharma (II) cannot be sustained is that these decisions though two or three-Judge Bench decisions run counter to that extent to the dictum of Constitution Bench in A.R. Antulay’s case : (1992 AIR SCW 1872 : AIR 1992 SC 1701 : 1992 Cri LJ 2717) and therefore cannot be said to be good law to the extent they are in breach of the doctrine of precedents. The well settled principle of precedents which has crystallised into a rule of law is that a bench of lesser strength is bound by the view expressed by a bench of larger strength and cannot take a view in departure or in conflict therefrom. “ 37. The question may be asked as to when a Judge sitting singly decides a writ petition which is cognizable by Division Bench whether the such judgment can be assumed to be judgment of Division Bench for the purpose of precedential value? Whether the judgment of one Judge shall be equivalent to precedent given by a Division Bench? The answer obviously shall be No. The hierarchy of the Court and the doctrine of precedent recognizes the strength of Bench i.e. quorum as relevant factor for determining its precedential value. Before us, not a single case has been referred to or relied where the judgment of one Judge deciding a writ petition which was cognizable by Division Bench has been given any higher precedential value than the precedential value of one Judge. This reason also reinforces our view that judgment of one Judge which has been appealed in the present case, cannot be assumed to be judgment of Division Bench. 38. This reason also reinforces our view that judgment of one Judge which has been appealed in the present case, cannot be assumed to be judgment of Division Bench. 38. The Division Bench judgment in Meera Sankhwar’s case (supra) which reiterates the other view now has to be noted. The said judgment is reported in (2004) 4 AWC 3162 . In the said case also an interim order was passed by Hon’ble Single Judge on 1. 7.2004 i.e. during vacations. Special Appeal was filed against the said interim order by the State of U.P. A preliminary objection was raised before the Bench hearing special appeal that the order passed by learned Single Judge was an order in a writ petition cognizable by Division Bench hence, the said order is to be treated as an order of Division Bench. The said preliminary objection was overruled. Following was laid down in paragraphs 3, 4 and 5 : “3. A preliminary objection has been taken by the learned counsel for the respondents in this appeal that the impugned interim order dated 1.7.2004, was passed by a learned Single Judge during the summer vacations and hence in view of Chapter V Rule 10(1) of the Allahabad High Court Rules the said interim order amounts to an order of a Division Bench of this Court, and hence no special appeal will lie against it. We do not agree. 4. Chapter V Rule 10 states : “Criminal work shall continue to be dealt with during the vacation by such Judges as may be appointed for the purpose by the Chief Justice. They may also exercise original, appellate, revisional, civil or writ jurisdiction vested in the Court in fresh matters which in their opinion require immediate attention. Such jurisdiction may be exercised even in cases which are under the Rules cognizable by two or more Judges, unless the case is required by any other law to be heard by more than one Judge. “ 5. The provision in the said Rule that the jurisdiction of a Division Bench can be exercised by a learned Single Judge does not mean that the order of a learned Single Judge becomes an order of a Division Bench. It only means that the learned Single Judge can exercise the jurisdiction which normally a Division Bench exercises. This does not mean that the Single Judge becomes a Division Bench. It only means that the learned Single Judge can exercise the jurisdiction which normally a Division Bench exercises. This does not mean that the Single Judge becomes a Division Bench. Hence in our opinion the order remains an order of a learned Single Judge, and hence a special appeal will lie under Chapter VIII Rule 5 of the High Court Rules.“ 39. Although the Division Bench in the State of U.P. and others v. Smt. Meera Sankhwar and others (supra) did not notice the earlier Division Bench but we having ourselves examined the two divergent views expressed in the aforesaid two Division Benches, non reference of earlier Division Bench by subsequent Division Bench is not of much significant. There is another Division Bench of this Court in State of U.P. and another v. Smt. Dayavati Khanna, 1994 AWC 1137. In the said case, an order was passed by learned Single Judge on Stay Application in a case which was entertainable by Division Bench. The determination of the jurisdiction as was prevalent at the relevant time by Chief Justice was that Division Bench matters were placed before Single Judge for consideration of the Stay application. The stay application was decided by Single Judge against which State filed Special Appeal. An objection was raised by counsel for the writ petitioner that special appeal would be competent only from an order passed in writ petition which is required to be heard by Single Judge but not when an order is passed by Single Judge in writ petition cognizable by Division Bench. Repealling the said submissions, following was laid down in paragraphs 9,10 and 11. “9. Faced with this situation, Mr. L.P. Naithani, Counsel for the Dayavati Khanna, sought to putforth the wholly untenable contention, that no special appeal lay against the impugned order. The argument being that a special appeal would be competent only from an order passed in a writ petition which is required to be heard by a Single Judge but not when an order is passed by a Single Judge in a writ petition cognizable by a Division Bench. In other words, in a writ petition, cognizable by a Division Bench no special appeal lies against an order passed by a Single Judge while dealing with interim matters. In other words, in a writ petition, cognizable by a Division Bench no special appeal lies against an order passed by a Single Judge while dealing with interim matters. Counsel could, however, point no rule or judicial precedent to support this contention which on the face of it, has no reason or principle to support it. 10. As is well know, it is in the exercise of powers vested in the Chief Justice that the Single Judges have been conferred jurisdiction to deal with matters pertaining to interim relief, in writ petitions, cognizable by a Division Bench. While dealing with such a matter the Single Judge does not function as a delegatee of the Division Bench nor there is any warrant for deeming an interim order passed by the Single Judge in a matter cognizable by the Division Bench, as being that of the Division Bench so as to bear a special appeal against it. 11. Further, there is nothing in the language of Rule 5 of Chapter VIII of the Allahabad High Court Rules 1952 to lend itself to any such interpretation, namely, barring an appeal from an order passed by the Single Judge in such matters, rather a reading of it would show that an appeal against the order of the Single Judge is in no way barred. There is thus no ground to hold that the present Special appeal was not competent. “ 40. The Division Bench judgment in State v. Dayavati Khanna (supra) also takes the correct view of the matter. 41. In view of the foregoing discussions our conclusion is that : (1) there is no legal fiction provided for in the Rules of the Court or any other law for assuming order of a Single Judge passed during vacations in a writ petition cognizable by Division Bench to be an order of Division Bench. (2) the Single Judge when exercises the jurisdiction in a writ petition cognizable by Division Bench, he exercises the jurisdiction in accordance with the determination made by Hon’ble the Chief Justice and while exercising such jurisdiction, he remains a Single Judge and order passed by Judge sitting singly, cannot be treated to be an order of Division Bench. (2) the Single Judge when exercises the jurisdiction in a writ petition cognizable by Division Bench, he exercises the jurisdiction in accordance with the determination made by Hon’ble the Chief Justice and while exercising such jurisdiction, he remains a Single Judge and order passed by Judge sitting singly, cannot be treated to be an order of Division Bench. (3) Chapter VIII Rule 5 of the Rules of the Court read with definition of the special appeal as provided in interpretation clause 3 of the Chapter I of the Rules provides that Special Appeal is maintainable against an order of one Judge. The Division Bench in Allahabad Galla Tilhan Vyapari Sangh wrongly assumed a legal fiction under Chapter V Rule 10, whereas no such legal fiction is discernable from the said proviso. The Division Bench in Allahabad Galla Tilhan placed its reliance on two decisions namely; East End Dwelling Co. LD. (supra) and Bengal Immunity case (supra) which were cases of express legal fiction and were neither applicable nor attracted in the said case. (4) the judgment of a Judge sitting singly in vacation exercising jurisdiction of writ petition cognizable by the Division Bench shall have precedential value of only one Judge. (5) Chapter VIII Rule 5 mentions several categories of special appeals which are barred/excluded whereas there is no such exclusion of the case of the present nature. Right of appeal which has been provided has to be expressly excluded or by necessary implications which exclusion we do not find in the present case. 42. In view of the foregoing discussions and conclusions, we answer two questions referred, in following manner: (i) Against the order and judgment of one Judge passed during vacation exercising jurisdiction in cases which are cognizable by Division Bench, special appeal under Chapter VIII Rule 5 of the Rules of the Court is maintainable. (ii) The Division Bench judgment in AIlahabad Galla Tilhan Vyapari (supra) does not lay down the correct law. The view expressed by Division Bench in State of U.P. v. Meera Sankhwar (supra) is approved. 43. Let our above answer be placed before the appropriate Division Bench hearing special Appeal. The reference is accordingly decided. ————

KULDEEP KUMAR TRIPATHI v. RANG BAHADUR