Mahendra Singh vs Asha Singh and Others

U.K. Dhaon and Pankaj Mithal, JJ.—The instant special appeal arises out of judgment and order dated 19.2.2007, passed by the Hon''ble single Judge allowing the Writ Petition No. 894 (M/S) of 2007, Smt. Asha Singh v. Election Tribunal, Sultanpur and others.

At the very outset Dr. L. P. Mishra learned Counsel appearing for the Respondent No. 1 has raised a preliminary objection that this special appeal is not maintainable under Chapter VIII, Rule 5 of the Allahabad High Court Rules, 1952 as the order passed by the District Judge in election petition was challenged by the Respondent No. 1 in the writ petition.

Sri U. K. Srivastava learned Counsel for the Appellant submitted that the order dated 15.2.2007, passed by the District Judge, Sultanpur is under Chapter IV of the Rules and not under the U. P. Act. Therefore, it is not covered by the exceptions mentioned in Chapter VIII, Rule 5 of the Allahabad High Court Rules, 1952. He has relied upon the decision of Mohd. Raza Khan v. Anis Ahmad Khan, 2005 (23) LCD 865.

We have considered the submissions of the learned Counsel for the parties and gone through the record.

The brief facts giving rise to the present special appeal are that an Election Petition No. 6 of 2006, Mahendra Singh v. Asha Devi and another, was filed in the Court of District Judge, Sultanpur challenging the election of Smt. Asha Singh who was declared elected as Pramukh of Kshetra Panchayat Bhetua, Sultanpur. In the said election petition the District Judge vide order dated 15.2.2007 directed for the summoning of the ballot papers and the record. The order dated 15.2.2007 was challenged by Smt. Asha Singh by means of the Writ Petition No. 894 (M/S) of 2007 which has been allowed by the impugned judgment and order dated 19.2.2007.

The aforesaid facts reveal that the Hon''ble single Judge had passed the impugned judgment in exercise of writ jurisdiction under Articles 226/227 of the Constitution of India which had arisen from a judgment/order of the Tribunal/Court passed under U. P. Kshetra Panchayat (Election of Pramukh/and Up-Pramukh and Settlement of Election Disputes) Rules, 1994 framed u/s 237 Kshettra Panchayats and Zila Panchayats, Adhiniyam, 1961 (hereinafter referred to as the Act).

Chapter VIII, Rule 5 of the Allahabad High Court Rules, 1952 provides for an appeal against the judgment of the Hon''ble single Judge but bars special appeals under certain categories of the judgments. The provision of Chapter VIII, Rule 5 is quoted below:

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 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 jurisdiction conferred by Article 226 or Article 227 of the Constitution in respect of any judgment, order or award (a) of Tribunal, Court or statutory arbitrator made or purported to be made in the exercise or purported exercise of jurisdiction under any U. P. 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.

A perusal of the aforesaid provision clearly demonstrate that an appeal shall lie to the Court from a judgment of one Judge, but

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 revsional jurisdiction or in the exercise of its power of superintendence or in exercise of criminal jurisdiction,

Or

In 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 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 exercise or purported exercise of appellate or revisional jurisdiction under any such Act.

Under the exception Clause 3 above special appeals against the judgment of the single Judge passed in exercise of Article 226/227 of the Constitution of India in respect of any judgment order and award of a Tribunal, Court or statutory arbitrator made in exercise or purported exercise of jurisdiction under the U. P. Act are barred. It also bars the filing of special appeals against the judgments of the single Judge passed in exercise of jurisdiction under Article 226/227 of the Constitution in respect of the matters made or purported to be made in exercise of appellate or revsional jurisdiction by the Government or any officer or authority.

Admittedly, the order of the District Judge dated 15.2.2007 was passed in an election petition which is required to be decided under the provisions of the Rules framed in exercise of powers u/s 237 of the Act. A careful perusal of the Rules particularly Rule 40 reveals that the District Judge while deciding the election petition has to follow the procedure provided in the CPC and as such acts as a Court/Election Tribunal and not as a Government or any officer or authority of the State. He is invested with the judicial power to adjudicate on questions of law and facts both affecting the rights of the parties. A Division Bench decision of this Court in the case of Azmat Yar Khan and Another Vs. Returning Officer, Nagar Palika and Others, , dismissed the special appeal as not maintainable against the judgment of the Hon''ble single Judge dismissing the writ petition. The writ petition had arisen from the judgment and order passed by the District Judge in an election petition u/s 19 of the Municipality Act, 1916. In substance it was held that where a Judge functions and passes an order acting as a Court and not as a Governmental authority, the decision in the writ petition passed by the Hon''ble single Judge arising therefrom would not be amenable to special appeal.

Thus, applying the above analogy, special appeal against a judgment passed by the Hon''ble single Judge in exercise of jurisdiction conferred by Article 226/227 of the Constitution in respect of any judgment order or award of a Tribunal or the Court passed in exercise of jurisdiction under any U. P. Act is not maintainable and is covered by the exceptions contained in Chapter VIII, Rule 5 of the Allahabad High Court Rules, 1952.

The submission of the learned Counsel for the Appellant is that the order dated 15.2.2007, passed by the District Judge, Sultanpur is under Chapter IV of the Rules and not under the U. P. Act. Therefore, it is not covered by the exceptions mentioned in Chapter VIII, Rule 5 of the Allahabad High Court Rules, 1952.

The submission though attractive is bereft of merit. The aforesaid rules have been framed by the State Government in exercise of powers u/s 237 (3) of the Act. Section 237 (3) of the Act provides that all Rules made under the Act shall as soon as may be after they are made be laid before each House of the State Legislature and take effect from the date of their publication in the Gazette, subject to such modifications or annulments as the two Houses of the State Legislature agreed to make. Therefore, the rule so framed under the above provisions of the Act have to be laid and approved by the State Legislature and as such are in the shape of subordinate legislation under the State Act. The District Judge has passed the order dated 15.2.2007 in purported exercise of his powers under the Act and the Rules in furtherance of deciding the election petition. Therefore, it is misconceived and unsustainable to contend that said order of the District Judge is not an order passed under the U. P. Act.

The order of the District Judge which was impugned in the writ petition before the Hon''ble single Judge cannot be said to be an order without jurisdiction inasmuch as undisputedly, the District Judge while deciding an election petition always has the power to summon the ballot papers or the record in exercise of his judicial discretion. Therefore, the Division Bench decision in the case of Mohd. Raza Khan v. Anis Ahmad Khan and Anr. 2005 (23) LCD 865, relied upon on behalf of the Appellants is of no avail and is not applicable to the facts and circumstances of this case.

Accordingly, we hold that the special appeal is not maintainable and it is dismissed as not maintainable.