Uttarakhand High Court
SPA/125/2022 on 10 June, 2022
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
THE ACTING CHIEF JUSTICE SRI SANJAYA KUMAR MISHRA
AND
JUSTICE SRI RAMESH CHANDRA KHULBE
SPECIAL APPEAL NO. 125 OF 2022
10th JUNE, 2022
Between:
Salman Badar & others ...... Appellants
and
State of Uttarakhand and others ...... Respondents
Counsel for the appellant : Mr. Kirti Uppal, learned Senior
Counsel assisted by Sidharth
Chopra, Mr. Aditya Sharma and
Mr. Vinayak Pant, learned counsel
Counsel for respondents : Mr. S.S. Chauhan, learned Deputy
Advocate General for the State /
respondent Nos. 1 and 4
: Mr. Sanjeev Agarwal, learned
learned counsel for respondent
Nos. 2 and 3
Upon hearing the learned Counsel, the Court made the
following
JUDGMENT: (per the Acting Chief Justice Shri Sanjaya Kumar Mishra)
By filing this Special Appeal, the students of
the Himalayan Institute of Medical Sciences, Swami Ram
Nagar, Jolly Grant, Dehradun, have assailed the
judgment passed by the learned Single Judge in a bunch
of writ petitions on dated 26.04.2022, holding that there
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is no reason to interfere with the order passed by the
Appellate Authority, which is impugned before him, and
therefore, the consequential orders issued by the State
Government and the notice issued by the Registrar of
respondent No. 4, i.e., the Medical College, in terms of
decision of the Appellate Authority also cannot be
interfered with. Such judgment was passed in Writ
Petition (M/S) No. 2566 of 2018, Vartika Chauhan and
others Vs State of Uttarakhand and others, as a lead
case, but eight other cases were disposed of along with
this writ petition.
2) At the time of fresh admission, the learned
counsel appearing for the Medical College and the
University raised an objection regarding the
maintainability of the intra-court appeal in view of the
provision of Rule 5 of Chapter VIII of the Rules of Court
1952 (as applicable to Uttarakhand High Court).
3) At the outset, we may briefly state the facts of
the case. The Fee Committee passed an interim order.
Said interim order was challenged by the University
before this Court, but the writ petition was withdrawn.
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Later on, the Fee Committee fixed the fee, which action
was challenged before the Appellate Authority. The
Appellate Authority, vide, judgment dated 05.07.2018,
upheld the order passed by the Fee Committee. Said
order dated 05.07.2018, was challenged before this
Court in various writ petitions, including the present
appellants, who are the students of the College
concerned.
4) The learned Single Judge after taking into
consideration all the relevant facts and question of law
raised before him came to the conclusion that there is no
reason to interfere with the order passed by the
Appellate Authority. Such order has been challenged in
this Special Appeal.
5) Rule 5 of Chapter VIII of the Rules of Court,
1952 (as applicable to the Uttarakhand High Court)
reads as under:-
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
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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 the 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 Uttarakhand 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.
6) So, in order to bring into play the prohibition
of Rule 5 of Chapter VIII of the Rules of the Court, 1952,
for entertaining any appeal against an order passed by a
learned Single Judge in exercise of jurisdiction conferred
under Article 226 of the Constitution, certain criteria has
to be considered.
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7) As far as this case is concerned, appeal shall
not lie, if in respect of any judgment or order passed by
this Court under Article 226 or Article 227 of the
Constitution against an order, judgment or award passed
by an authority made or purported to be made in the
exercise or purported exercise of revisional jurisdiction
under any Uttarakhand Act with respect to any of the
matters enumerated in the State List or the Concurrent
List in the Seventh Schedule to the Constitution. It is
not disputed at this stage that professional education
appears at entry No. 25 of the Concurrent List of the
Seventh Schedule to the Constitution. Secondly, the
Uttarakhand Unaided Private Professional Educational
Institutions (Regulation of Admission and Fixation of
Fees) Act, 2006, has been legislated by the Uttarakhand
Legislative Assembly in purported exercise of Article 246
of the Constitution, and entry No. 25 of the Concurrent
List of the Seventh Schedule to the Constitution.
8) Thus, it is clear that all the necessary criteria
that are required to bar an appeal, are available in this
case. It is well settled principle of law that appeal is a
creation of Statute, and unless the Statute provides, an
appeal cannot be held to be maintainable.
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9) Similar issue arose before this Court earlier
also in the case of Intezar Hussain and another Vs State
of Uttarakhand and others, 2015 (2) U.D. 261. The
Division Bench of this Court, headed by the then Chief
Justice, examined whether under Rule 5 of Chapter VIII
of the Allahabad High Court Rules, 1952 (as applicable to
the State of Uttarakhand) an intra-court appeal shall lie
to the Division Bench against a judgment passed by the
learned Single Judge in a writ petition challenging the
final order passed by the Prescribed Authority under the
Uttar Pradesh Public Premises Act, and the Division
Bench came to the conclusion that such appeal is not
maintainable in view of the provision of Rule 5 of
Chapter VIII of the Rules of Court, 1952.
10) Similarly, in the case of M/s Hotel Urvashi Vs
Uttarakhad Power Corporation Ltd. and another, 2020
(2) U..D 33, a Division Bench of this Court, headed by
the then Chief Justice, came to the conclusion that an
intra-court appeal is not maintainable against the order
passed by the learned Single Judge, against the final
order of the Consumer Grievances Redressal Forum
holding that such appeal is not maintainable.
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11) In this case also, it is not disputed that the
Appellate Authority exercising jurisdiction under the
Uttarakhand Unaided Private Professional Educational
Institutions (Regulation of Admission and Fixation of
Fees) Act, 2006, is a quasi-judicial body and any final
order passed thereon, if challenged before the learned
Single Judge and a final order is passed, then the order
is not appealable before the Division Bench.
12) In that view of the matter, we hold that the
present Special Appeal is not maintainable. The same is
hereby dismissed. There shall be no order as to costs.
Urgent certified copy of this order be supplied
to the learned counsel for the parties, as per Rules.
___________________________
SANJAYA KUMAR MISHRA, A.C.J.
_____________________
RAMESH CHANDRA KHULBE, J.
Dt: 10th JUNE, 2022
Negi
