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2016 DIGILAW 665 (UTT)

Bablu v. Bharat Heavy Electricals Ltd.

2016-09-30

ALOK SINGH, K.M.JOSEPH

body2016
JUDGMENT : K.M. Joseph, J. This is special appeal against the judgment of the learned Single Judge whereby writ petition filed by the 1st respondent/writ petitioner was allowed. The relief sought by the 1st respondent in the writ petition was to issue a writ, order or direction in the nature of certiorari quashing the order dated 27.11.2015, passed by Additional Commissioner, Garhwal Mandal, Pauri in Misc. Revision No. 1/2014-15, Bablu Vs Special Land Acquisition Officer, Haridwar and State of Uttarakhand, annexure No.6 to the writ petition. 2. Learned counsel for the respondents raised a preliminary objection, namely, that the present appeal is not maintainable. 3. We straightway extract Rule 5 of Chapter VIII of the Allahabad High Court Rules, which are applicable to this Court also:- “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 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 of purported exercise of appellate or revisional jurisdiction under any such Act of one Judge.]” 4. Sri J.M. Sharma, learned Senior Counsel for the appellant would point out that this is a case where the writ petition was styled under Article 227 of the Constitution of India but it was registered under Article 226 of the Constitution of India. Having regard to the judgment delivered by the learned Single Judge, it must be treated as a case of exercise of power under Article 226 of the Constitution. Having regard to the judgment delivered by the learned Single Judge, it must be treated as a case of exercise of power under Article 226 of the Constitution. Learned Senior Counsel for the appellant would further submit that the learned Single Judge has found in his judgment that the writ petitioner/respondent No. 1 was not heard by the Revisional Authority when it passed the impugned order. Power could have been exercised by remitting the matter back to the Revisional Authority. Instead the learned Single Judge allowed the writ petition and quashed the order. 5. Learned Senior Counsel for the appellant would also refer to the case law in Sushilabai Laxminarayan Mudliyar and others Vs. Nihalchand Waghajibhai Shaha and others reported in 1993 Supp (1) SCC 11. In the said judgment the matter arose under the Letters Patent in Mumbai High Court and the question was – as to whether the appeal would lie against the judgment of the learned Single Judge. The Court took the view that the test is not whether in truth and substance the order was passed under Article 226 & 227 and where the facts justify filing of petition either under Article 226 or under Article 227 but it is filed under both Articles. The Court should treat the petition as being filed under Article 226 so as to not deprive the party of the right of appeal to Division Bench under Clause 25 of the Letters Patent. 6. The issue is not in this case, whether it is to be treated under Article 226 / 227. The Rule, by which we are bound, which are adverted to and extracted hereinbefore in the latter part, clearly renders incompetent an appeal against the judgment of the learned Single Judge when jurisdiction is exercised under Article 226 or 227 of the Constitution in respect of the judgment, order or award of a Tribunal inter alia. This is a case where feeling aggrieved by the order of the Tehsildar, the appellant had successfully maintained a revision under Section 219 of the U.P. Land Revenue Act. Appellant succeeded in revision before the said Revisional Authority. It is against the order of the Revisional Authority that the writ petition was filed by the 1st respondent. This is a case where feeling aggrieved by the order of the Tehsildar, the appellant had successfully maintained a revision under Section 219 of the U.P. Land Revenue Act. Appellant succeeded in revision before the said Revisional Authority. It is against the order of the Revisional Authority that the writ petition was filed by the 1st respondent. In answer to a query from the Bench, the learned Senior Counsel for the appellant would indeed submit that the order which is impugned in the writ petition was passed by an authority which could be described as Tribunal. If it was so, we have no doubt in our mind that the present appeal is not maintainable. This for the reason be it under Article 226 or 227, the judgment of the learned Single Judge in respect of an order passed by the Tribunal purported to be made in exercise of jurisdiction under any U.P. Act, inter alia, with respect of the matter under ‘State List’ or the ‘Concurrent List’, is not appealable. 7. In this case, admittedly, the Additional Revenue Commissioner who was the Revisional Authority under Section 219 of the U.P. Land Revenue Act, must be treated as a Tribunal. If the impugned order is the product of purported exercise of jurisdiction under an U.P. Act, then a further appeal will not lie. Even assuming for a moment that it is not Tribunal and, therefore, it falls to be considered under Clause (b), which constitutes the last provision of the Rule, it provides that if an order is passed in exercise or purported exercise of appellate or revisional jurisdiction under the Act by any officer or authority, then further appeal will not lie. 8. It is clear to us that the present appeal is not maintainable for the foregoing reasons. Therefore, the appeal fails and is dismissed as not maintainable. No order as to costs.