Shadab Ahmad vs State Of U.P. And 14 Others
2022 Latest Caselaw 4992 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?AFR
 
Court No. - 21
 

 
Case :- SPECIAL APPEAL No. - 466 of 2022
 
Appellant :- Shadab Ahmad
 
Respondent :- State Of U.P. And 14 Others
 
Counsel for Appellant :- S.M. Iqbal Hasan,Syed Badshah Husain Naqvi
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Manoj Kumar Gupta,J.

Hon'ble Chandra Kumar Rai,J.

This intra-Court appeal is directed against the order dated 25.05.2022 passed by a learned Single Judge in a writ petition filed by the petitioner challenging the order dated 13.05.2022 passed by the Prescribed Authority/Sub Divisional Magistrate Baberu in a petition filed against him under Section 12-C of the U.P. Panchayat Raj Act, 1947 challenging his election as Gram Pradhan of Gram Sabha Hardauli.

Sri Gajendra Pratap, learned Senior Advocate assisted by Sri Virendra Singh, appearing on behalf of respondent no.5 raised a preliminary objection to the maintainability of the instant special appeal. It is submitted that the present special appeal is barred as it is directed against the order of learned Single Judge passed under Article 226 in respect of an order passed by the Election Tribunal constituted under U.P. Act. It is urged that in view of specific exclusion made under Chapter VIII, Rule 5 of the Allahabad High Court Rules, 1952, this appeal is incompetent.

On the other hand, Sri Shailendra, learned Senior Counsel assisted by Sri S.N. Iqbal appearing for the appellant submitted that the special appeal is perfectly maintainable, inasmuch as, the election petition itself was still-born not having been presented in the manner prescribed; that the Act itself contemplates filing of revision before District Judge which shows that the Sub Divisional Magistrate while exercising power under Section 12-C of the U.P. Act does not act as an Election Tribunal but in administrative capacity; and in any view, the Election Tribunal does not have trappings of civil court.

The facts necessary for disposal of the instant appeal are that respondent no.5 presented a petition under Section 12-C of U.P. Panchayat Raj Act, 1947 (hereinafter referred as 'the Act') challenging the election of the appellant on the post of Gram Pradhan. The appellant filed an application on 18.08.2021 raising various issues touching upon the maintainability of the election petition. On 13.05.2022, respondent no.3 i.e. Prescribed Authority/U.P. Zila Adhikari, Baberu, Banda while acting as Election Tribunal directed for recounting of the ballots. Aggrieved thereby, the appellant filed writ petition no.14609 of 2022 before this Court which was allowed in part and recounting of only polling booth no.103, ward no.5, Gram Panchayat-Hardauli was permitted. Being further aggrieved thereby, the instant appeal has been filed.

The provision relating to intra-Court appeal is governed by Chapter VIII, Rule 5 of the Allahabad High Court Rules, 1952. It 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 bya 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 66[or in the exercise ofthe 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.

The above provision has come up for interpretation in reference to orders passed by Election Tribunals under Section 12-C of U.P. Panchayat Raj Act, 1947 in Vajara Yojna Seed Farm, Kalyanpur (M/s.) & others vs. Presiding Officer, Labour Court II, U.P., Kanpur & another, 2003 (1) UPLBEC 496.

Paragraphs 59, 60, 61 & 62 of the said judgment specifically deals with the issue being raised in the instant appeal. The Division Bench held that the Election Tribunal while deciding the election petition under Section 12-C of the Act has all the trappings of Court and that a special appeal under Chapter VIII, Rule 5 of the Rules of Court would not be maintainable. The relevant paragraphs from the said judgment dealing with the above issue are extracted below:

59. The third category special appeal being Special Appeal Nos. 1118 of 2002 and 532 of 2002 arise out of writ petition in which order of Election Tribunal was challenged. The Election Tribunal while deciding the Election Petition functions as a Tribunal. Statutory rules have been framed regarding procedure to be followed while deciding the Election Petition. Certain provisions of Code of Civil Procedure as well as provisions of Evidence Act are attracted while deciding the Election Petition. The Election Tribunal decides lis between the parties. Parties are entitled to lead evidence before the Election Tribunal. Election Tribunal, has thus, all trapping of Court and Election Tribunal is a Tribunal. Special appeal against the order passed in writ petition arising out of order of Election Tribunal is not maintainable. Under Section 12-C of U.P. Panchayat Raj Act Election Petition is to be heard and decided in accordance with the statutory rules, namely, Uttar Pradesh Zila Panchayat (Settlement of Disputes Relating to Membership) Rules, 1994. Rule 11 of the aforesaid 1994 Rules are extracted below :-

"11. Procedure before the Judge.-(1) Except so far as provided by the Act or in these Rules, the procedure provided in Code of Civil Procedure, 1908 in regard to suits shall in so far as it is not inconsistent with the Act or any provisions of these Rules and it can be made applicable, be followed in the hearing of the petitions :

Provided that:

(a) any two or more petitions to the membership of the same person may be heard together;

(b) the Judge shall not be required to record the evidence in full but shall make a memorandum of the evidence sufficient in his opinion for the purpose of deciding the case;

(c) the Judge may, at any stage of the proceedings; require the petitioner to give further cash security for the payment of the casts incurred or likely to be incurred by any respondent;

(d) for the purpose of deciding any issue, the Judge shall only be found to order production of or to receive only so much evidence, oral or documentary as he considers necessary;

(e) any person aggrieved from the decision of the Judge may apply for review to the Judge within 15 days from the date of decision and the Judge may thereupon review the decision.

(2) The provisions of the Indian Evidence Act, 1872 (Act No. 1 of 1872) shall, subject to the provision of the Act and these Rules, be deemed to apply in all respects in the proceedings for the disposal of the petition."

60. Taking into consideration the aforesaid Rules and the power which is being exercised by the Election Tribunal, it is clear that Election Tribunal functions as Tribunal and it has all trapping of Court. In Special Appeal No. 532 of 2002 the Election Tribunal is Additional District Judge, Bareilly. Two decisions cited by Sri V.S. Sinha, Advocate appearing for the appellant in Special Appeal No. 532 of 2002 need to be considered. The decision of Prakash Timbers (Summary of Cases) (supra) was with regard to order passed by Company Law Board. The aforesaid case was on its own footing. In the aforesaid case the Division Bench of this Court had no occasion to consider as to whether Election Tribunal is a Tribunal. In these special appeals since orders were passed by Election Tribunal, the appeal is barred by Chapter VIII, Rule 5 of the Rules of the Court. The Division Bench judgment of this Court in Pratappur Sugar and' Industries' case (supra) has clearly held that if writ petition was filed challenging the order of Tribunal, special appeal is not maintainable. The Division Bench in Paragraph 15 of the aforesaid judgment held as under :-

"15. For the reasons discussed above, the inescapable conclusion is that an Additional/Deputy Labour Commissioner while exercising jurisdiction under Sub-section (6) of Clause II of the Standing Orders Junctions as a Tribunal. The writ petition had been filed challenging the order of Deputy Labour Commissioner and being a Tribunal, the present special appeal under Chapter VIII, Rule 5 of the Rules of the Court is not maintainable. The special appeal is accordingly dismissed."

61. The next case relied by Counsel for the appellant is State of U.P. v. Smt. Dayavati Khanna (supra). In the aforesaid case the argument which was raised before the Division Bench was to the effect that special appeal would be competent only from an order passed in a writ petition which is required to be heard by Single Judge but not when an order is passed by Single Judge in a writ petition cognizable by Division Bench. The said argument was considered and it was held that appeal was maintainable since the judgment passed was of a Single Judge dated 29th April, 1993. The aforesaid judgment does not in any manner help the Counsel for the appellant. The Division Bench judgment of this Court reported in 1998 (32) ALR 603, Smt. Rama Devi v. Smt. Madhnri Verma and Ors., is fully applicable in the present case. In the aforesaid judgment the Division Bench held special appeal not maintainable in a case, which arose out of writ petition, filed against the order of Election Tribunal. In the aforesaid case Prescribed Authority exercising power under Section 12-C of U.P. Panchayat Raj Act passed a recounting order, The Division Bench upheld the objection or maintainability of the special appeal. It was laid down in Paragraph 6 of the judgment:

"6. It is clear from the aforesaid Rule that no special appeal is maintainable in the cases where the controversy does not originate before the High Court. The Rule admittedly is based on a logic that the Prescribed Authority or the Revisional Authority which act as Tribunal/Court having already appreciated the matter from judicial angle and in order to get finality the decision of the Single Judge should be taken as final and no appeal should further be maintainable. This Court has taken similar view in Sita Ram Lal v. D.I.O.S., Azamgarh and Ors., wherein the main object of Chapter VIII, Rule 5 has been duly discussed."

62. In view of the foregoing discussions, it is clear that special appeal arising out of writ petition filed against the order passed by Election Tribunal are also barred by Chapter VIII, Rule 5 of the Rules of the Court. Consequently Special Appeal Nos. 1118 of 2002 and 532 of 2002 are liable to be dismissed as not maintainable.

It has been clearly held in paragraph 62 that special appeals arising out of writ petition filed against the order passed by a Election Tribunal under Section 12-C are barred by Chapter VIII, Rule 5 of the Rules of the Court.

The Sub Divisional Magistrate, while passing order dated 13.05.2022 has clearly mentioned that the order is being passed by him, acting as prescribed authority under the Act. Under Section 12-C of the Act, the election petition lies before such authority as may be prescribed. It is not the case of the appellant that Sub Divisional Magistrate is not the authority prescribed to deal with a petition under Section 12-C. The contention that the election petition was not presented in the manner prescribed could be considered, had the appeal been maintainable. As this appeal is not maintainable, we cannot arrogate to ourselves the power to dwell on the issue. Likewise, provision relating to revision before District Judge, will not detract from the legal position that the proceedings originate from an order of Election Tribunal under U.P. Act.

We, accordingly, uphold the preliminary objection and dismiss the special appeal as not maintainable.

(Chandra Kumar Rai, J.) (Manoj Kumar Gupta, J.)

Order Date :- 7.6.2022

P Kesari