Allahabad High Court
Smt. Urmila vs Smt. Manoj Devi And 20 Others on 22 November, 2022
Bench: Manoj Misra, Vikas Budhwar
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 29
Case :- SPECIAL APPEAL DEFECTIVE No. - 556 of 2022
Appellant :- Smt. Urmila
Respondent :- Smt. Manoj Devi And 20 Others
Counsel for Appellant :- Vivek Saran
Counsel for Respondent :- C.S.C.,Kunwar Akhilendra Singh
Hon'ble Manoj Misra,J.
Hon'ble Vikas Budhwar,J.
Heard.
This intra court appeal is against an order of the learned Single Judge dated 6.11.2022 in Writ C No. 33777 of 2022 whereby, the effect and operation of the order of recount dated 5.11.2022 passed by the Prescribed Authority, District Etah has been put in abeyance.
A preliminary objection with regard to the maintainability of this appeal has been taken on the ground that a special appeal will not lie against an order of Single Judge passed in exercise of jurisdiction conferred by Article 226 or 227 of Constitution of India in respect of any judgement, order or award of a Tribunal, Court or Statutory Arbitrator, made or purported to be made in 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 of India. It has been urged that the Prescribed Authority while passing the order of recount acted as an Election Tribunal and, therefore, any order passed in a writ petition filed against the order of the Prescribed Authority would not be amenable to an intra court appeal under Chapter VIII Rule 5 of the High Court Rules. In support of the above preliminary objection, the full Bench decision of this Court in Sheet Gupta Vs. State of U.P. and Others 2010 (1) ESC 273 (FB) has been cited wherein it was held that a Special Appeal will not lie in the following circumstances:
"1. The judgment passed by one Judge in the exercise of appellate jurisdiction, in respect of a decree or order made by a Court subject to the Superintendence of the Court;
2. the order made by one Judge in the exercise of revisional jurisdiction;
3. the order made by one Judge in the exercise of the power of Superintendence of the High Court;
4. the order made by one Judge in the exercise of criminal jurisdiction;
5. the order made by one Judge in the exercise of jurisdiction conferred by Article 226 or Article 227 of the Constitution of India in respect of any judgment, order or award by-
(i) the tribunal,
(ii) Court or
(iii) 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 of India;
6. the order made by one Judge in the exercise of jurisdiction conferred by Article 226 or 227 of the Constitution of India in respect of any judgment, order or award of-
(i) the Government or
(ii) any officer or
(iii) authority,
made or purported to be made in the exercise or purported exercise of appellate or revisional jurisdiction under any such Act, i.e. 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 of India. "
As it is not in dispute that the learned single judge while passing the order impugned was exercising its powers under Article 226 of the Constitution of India while examining a challenge to an order of recount passed by the Prescribed Authority on an Election Petition, we would have to first determine whether the Prescribed Authority is a Tribunal dealing with an Election Petition.
The word 'Tribunal' is neither defined in the High Court Rules nor under the General Clauses' Act. In these circumstances the judicial pronouncements in this regard would be useful. A full bench of this Court dealing with the issue as to whether the Deputy Director of Education while exercising powers under section 16 A (7) of the U.P. Intermediate Education Act, 1921 is a Tribunal, while holding that it is not a Tribunal, in paragraph 17 of its judgement in C/M, Shri Kashiraj Mahavidyalaya, Aurai v. Deputy Director of Education, Varanasi, AIR 1997 Allahabad 99 observed:
"It would appear that to determine the question whether an authority is a tribunal, the nature of the order passed by the authority and also the characteristic of the body which is called upon to adjudicate upon the matter in dispute are material considerations. Even a judicial authority, may, in a given situation, act in administrative or executive capacity. In that situation the authority would not be a tribunal. Likewise an administrative authority, even if required to act judicially would not be a tribunal if it is not invested with the inherent judicial power of the State."
No doubt, the prescribed authority on an Election Petition decides the disputes in accordance with the procedure applicable under the Code of Civil Procedure, 1908 as is applicable to the trial of Suits vide Rule 4 of U.P. Panchayati Raj (Settlement of Election Disputes) Rules, 1994, which have been framed and notified in exercise of the powers conferred by Section 110 read with Section 12 C and Section 12 D of the U.P. Panchayati Raj Act, 1947 (U.P. Act No. 26 of 1947), and have to act judicially but whether it is invested with the inherent judicial power of the State is an aspect on which there appears not sufficient material on record therefore, we do not propose to express our opinion on the question of maintainability and leave that question for consideration in some other case.
However, since this appeal only questions an interim order by which a date has been fixed and till that date the order of recount has been stayed, we do not propose to interfere with such an interim order inasmuch as if we vacate the interim order the writ petition would be rendered infructuous. Consequently, we deem it appropriate to dispose off this petition by giving liberty to the petitioner to apply for discharge of the interim order and press his application for vacating the interim order on the next date fixed.
Order Date :- 22.11.2022
A. Mandhani
