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2016 DIGILAW 1106 (ALL)

Jaswant v. State of U. P.

2016-03-29

V.K.SHUKLA, VIVEK KUMAR BIRLA

body2016
JUDGMENT Jaswant s/o Tej Singh is before this court assailing the validity of the order dated 28th January, 2016 passed by learned Single Judge in Civil Misc. Restoration Application No.275169/2015 and further prayer is to allow the restoration application by restoring Civil Misc. Writ Petition No.37388/2005 to its original number so that the same be heard and decided on merits. 2. Brief facts of the case are that petitioner-appellant is a Fair Price Shop Keeper of Gaon Sabha Malesheya, Tehsil Chandpur, District Bijnore. Petitioner-appellant submits that alleging irregularities in distribution of Essential Commodities Distribution System, he has been placed under suspension and thereafter inquiry has been got conducted wherein Sub Division Magistration, Tehsil Chandpur, District Bijnour has cancelled the agreement of shop of petitioner-appellant on 31st March, 2015. 3. Aggrieved against the same, petitioner-appellant preferred appeal before the Divisional Commissioner, Moradabad Division, Moradabad and the said appeal in question has also been dismissed on 16th June, 2015. Petitioner-appellant thereafter preferred Writ Petition No.37388 of 2015 before this Court and the said writ petition in question has been dismissed vide an order dated 27th July, 2015. Thereafter petitioner-appellant moved a recall application and the said recall application has also been rejected on 28th January, 2016 and thus leading to filing of present Special Appeal. 4. On the matter being taken up today, learned Standing Counsel raised a preliminary objection qua the maintainability of the Special Appeal in question on the ground that the U.P. Schedule Commodities Distribution Order, 2004 has been framed by the State Government in exercise of powers conferred under Section 3 of Essential Commodities Act, 1955 (Act No.10 of 1955) read with order of Government of India, Ministry of Consumer Affairs, Food and Public Distribution, Department of Food and Public Distribution published under GSR 630 (R), dated August 31, 2001 and all other powers enabling in this behalf and in view of this, once appeal has been preferred under U.P. Schedule Commodities Distribution Order, 2004 wherein under order 28 of the aforesaid Distribution Order, 2004, the provision of Appeal has been provided for before Divisional Commissioner, then in consonance with of Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952, Special Appeal is not at all competent and maintainable. 5. 5. Learned Counsel appearing for petitioner-appellant, Shri Jitendra Kumar, on the other hand, contended that Special Appeal in question is maintainable in the present case as here recall application has been rejected by learned Single Judge and in view of this, appeal be entertained and requisite relief be accorded. 6. Before we deal with the subject, it would be worthwhile to look into the provisions of Chapter VIII Rule 5. 7. Special Appeal in question is provided for under Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952 and the same reads as follows: (i) Chapter VIII Rule 5 Rule 5 of Chapter VIII, as it stands at present, reads 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 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." 8. The provisions of Chapter VIII Rule 5 would go to show that an appeal lies, first and foremost, from a judgement. Rules 5 then proceeds to lay down the expected categories or exclusions where a special appeal will not be maintainable. The provisions of Chapter VIII Rule 5 would go to show that an appeal lies, first and foremost, from a judgement. Rules 5 then proceeds to lay down the expected categories or exclusions where a special appeal will not be maintainable. The exclusions, which have been specified in Rule 5, are: "(i) A judgment passed in the exercise of the appellate jurisdiction in respect of a decree or order made by a court subject to the superintendence of the Court; (ii) An order made in the exercise of revisional jurisdiction; (iii) An order made in the exercise of the power of superintendence; (iv) An order made in the exercise of criminal jurisdiction; (v) An order made in the exercise of jurisdiction conferred by Articles 226 or 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 Central Act, with respect to a matter contained in the State List or the Concurrent List to the Seventh Schedule of 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." 9. On the parameters of the aforementioned provisions, we have to see and examine as to whether the judgement in question i.e. being assailed before us, would fall within the scope and ambit of the exclusions which have been specified in Rule 5 of Chapter VIII. 10. A bare perusal of the exclusions quoted above would go to show that an order passed by 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 Central Act, with respect to a matter contained in the State List or the Concurrent List to the Seventh Schedule of the Constitution or of the Government or any authority, made or purported to be made in the exercise or purported exercise of appellate or revisional jurisdiction under any such Act. 11. 11. In the present case, the order that has been subject matter of challenge before the learned Single Judge, at the first instance has been an order passed by an Appellate Authority under the provisions of U.P. Schedule Commodities Distribution Order, 2004 framed by the State Government in exercise of power conferred under Section 3 of Essential Commodities Act, 1965 read with order of Government of India, Ministry of Consumer Affairs, Food and Public Distribution, Department of Food and Public Distribution published under GSR 630 (R), dated August 31, 2001 and all other powers enabling in this behalf. 12. Once the U.P. Schedule Commodities Distribution Order, 2004 has been framed in exercise of powers conferred under Section 3 of the Essential Commodities Act, 1965 and the order in question that has been subjected to challenge has been passed in purported exercise of appellate jurisdiction, then to say that Special Appeal in question is maintainable cannot be accepted by us, in view of this, Special Appeal is held to be not maintainable and is accordingly dismissed.