HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. 3 Special Appeal Defective No. 323 of 2004. Ram Dhyan Singh. ....... ...............Appellant. Versus The State of U.P. and others. ........ ..............Respondents. ----------
Present:
Hon'ble Mr. Justice Amitava Lala, Hon'ble Mr. Justice S.K. Singh, Hon'ble Mr. Justice S.P. Mehrotra, Hon'ble Mr. Justice S.U. Khan, & Hon'ble Mr. Justice Pankaj Mithal.
Appearance:
For the Appellant : Mr. Ramendra Asthana, & Mr. Vijai Kumar Ojha. For the Respondents : Mr. M.C. Chaturvedi, Chief Standing Counsel, & Dr. Y.K. Srivastava, Standing Counsel. --------
Amitava Lala, J.-- In the aforesaid special appeal a Division Bench of this Court by an order dated 23rd April, 2004 referred two questions for the purpose of due consideration by a larger Bench. The questions so referred are as follows:
"1. Whether a writ will lie even in the matter of non-statutory contract?
2. Whether a writ will lie in cases relating to fair price shops e.g. grant, cancellation, suspension, etc. of fair price shops."
Accordingly, a five Judges' Bench was constituted on 05th November, 2004. Time to time members of the Bench were changed. During the pendency of this reference, another Division Bench of this Court by an order dated 27th January, 2009 passed an order in Special Appeal No. 1942 of 2008 (Sheet Gupta Vs. State of U.P. and others) taking different view than that of Ram Dhyan Singh Vs. State of U.P. and others, reported in 2004 (3) AWC 2559, and opined that the decision of Ram Dhyan Singh (supra) requires reconsideration by a larger Bench, particularly in view of the decision in the case of Vajara Yojna Seed Farm Kalyanpur (M/s.) and others Vs. Presiding Officer, Labour Court II, U.P., Kanpur and another, reported in 2003 (1) ESC 492, of another coordinate Bench and framed the following question:
"Whether a special appeal under the provisions of Rule 5 of Chapter VIII of the Rules of the Court lies in a case where the judgment has been given by a learned Single Judge in a writ petition directed against an order passed in an appeal under paragraph 28 of the U.P. Scheduled Commodities Distribution Order, 2004?"
Accordingly, a Full Bench consisting of three Judges was constituted to decide such question. Such Full Bench by its judgement and order dated 11th December, 2009, reported in 2010 (1) ESC 273 (All)(FB) (Sheet Gupta Vs. State of U.P. and others) answered the question saying that the special appeal is not maintainable under the provisions of Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952. It was further specifically held therein that Ram Dhyan Singh (supra) does not lay down the correct law.
Against this background, this Bench is of the opinion that when a three Judges' Bench has already held that Ram Dhyan Singh (supra) does not lay down the correct law, no answer is required to be given in respect of the questions referred in such special appeal having been not maintainable. Hence, we decline to give answer to the questions raised under the special appeal. Therefore, no further order is required to be passed.
Accordingly, the reference is treated to be disposed of finally.
(Justice Amitava Lala) We agree.
(Justice S.K. Singh) (Justice S.P. Mehrotra) (Justice S.U. Khan) (Justice Pankaj Mithal) Dated: 27th April, 2011.
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