# Kuldeep Kumar Tripathi v. Rang Bahadur and others

- **Citation:** (2010) 1 ILRA 77
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-02-25
- **Case number:** Special Appeal No.807 of 2008
- **Bench:** Ashok Bhushan, Arun Tandon, Sanjay Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kuldeep-kumar-tripathi-v-rang-bahadur-and-others-41529
- **Pages:** 21

## Headnote

High Court Rules Chapter VIII Rule 5Special Appeal against the order passed
by single judge during summer vacationmatter cognizable by Division BenchWhether special appeal maintainable? -
held-Yes.

Held: Para 38

In view of the foregoing discussions and
conclusions, we answer two questions
referred, in following manner:

(I) Against the order and judgment of
one
Judge
passed
during
vacation
exercising jurisdiction in cases which are
cognizable by Division Bench, special
appeal under Chapter VIII Rule 5 of the
Rules of the Court is maintainable.
(II) The Division Bench judgment in
Allahabad Galla Tilhan Vyapari (supra)
does not lay down the correct law. The
view expressed by Division Bench in
State
of
U.P.
Vs.
Meera
Sankhwar
(supra) is approved.
Case Law discussed:
1985 UPLBEC1064,2004(4) AWC 3162, 1952
(2) A.C. 109, AIR 1955 S.C. 661, (1979) 4 SCC
204, (2000) 2 SCC 699, (2003) 1 UPLBEC 496,
(2004) 11 SCC 672, (2002) 4 SCC 578, 1994
AWC 1137.

## Text

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1 All] Kuldeep Kumar Tripathi V. Rang Bahadur and others
77
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 25.02.2010

BEFORE
THE HON'BLE ASHOK BHUSHAN, J.
THE HON'BLE ARUN TANDON, J.
THE HON'BLE SANJAY MISRA, J.

Special Appeal No.807 of 2008

Kuldeep Kumar Tripathi
...Petitioner
Versus
Rang Bahadur and others ...Respondents

Counsel for the petitioner:
Sri A.N. Tripathi
Sri Arvind Kumar Mishra,
Sri R.P. Mishra

Counsel for the Respondent:
Sri M.C. Chaturvedi
Dr. Y.K. Srivastava
C.S.C.

High Court Rules Chapter VIII Rule 5Special Appeal against the order passed
by single judge during summer vacationmatter cognizable by Division BenchWhether special appeal maintainable? -
held-Yes.

Held: Para 38

In view of the foregoing discussions and
conclusions, we answer two questions
referred, in following manner:

(I) Against the order and judgment of
one
Judge
passed
during
vacation
exercising jurisdiction in cases which are
cognizable by Division Bench, special
appeal under Chapter VIII Rule 5 of the
Rules of the Court is maintainable.
(II) The Division Bench judgment in
Allahabad Galla Tilhan Vyapari (supra)
does not lay down the correct law. The
view expressed by Division Bench in
State
of
U.P.
Vs.
Meera
Sankhwar
(supra) is approved.
Case Law discussed:
1985 UPLBEC1064,2004(4) AWC 3162, 1952
(2) A.C. 109, AIR 1955 S.C. 661, (1979) 4 SCC
204, (2000) 2 SCC 699, (2003) 1 UPLBEC 496,
(2004) 11 SCC 672, (2002) 4 SCC 578, 1994
AWC 1137.

(Delivered by Hon'ble Ashok Bhushan, J.)

1. This Full Bench has been
constituted to answer the following two
questions referred by a Division Bench
noticing conflict in two Division Benches
of this Court-

"(1)
Whether
against
the
order/judgement of one judge passed in
vacation exercising jurisdiction in cases
which are cognizable by a Division Bench
an special appeal under Chapter VIII Rule
5 of the Rules of the Court is
maintainable?

(2) Whether the Division Bench
judgement in Allahabad Galla Tilhan
Vyapari Sangh, 25, Muthiganj and
others, 1985 UPLBEC1064 (supra) or
Division Bench Judgement in State of
U.P. And others Vs. Smt. Meera
Sankhwar and others, 2004(4) AWC
3162, lays down the correct law?"

2. The fact of the case necessitating
the reference briefly noted are that writ
petition no. 26716 of 2008 was files by
the respondent no. 1 during summer
vacations praying for order and direction
in the nature of certiorari, quashing the
notice dated 13/14th may, 2008 convening
meeting
of
Kshetra
Panchayat
for
consideration of no confidence motion
against Pramukh of Kshetra Panchayat,
Rang Bahadur Panday. A mandamus was
also sought for directing the opposite
parties not to interfere in the working of
the petitioner as Pramukh. The writ
78 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
petition was a Misc. writ petition
cognizable
by
a
Division
Bench.
However, since the writ petition was filed
during the summer vacation, it was taken
up by a Hon'ble Single Judge, who had
jurisdiction to hear such writ petitions
during summer vacations under orders of
Hon'ble the Chief Justice. A limited
interim order was passed by Hon'ble
Single Judge on 2.6.2008. The present
Special Appeal under Chapter VIII Rule 5
of the Rules of the Court has been filed by
Kuldeep Kumar Tripathi alongwith an
application for leave to Appeal, stating
that the applicant had moved the no
confidence motion signed by 72 members
on the basis of which District Magistrate
Allahabad issued notice dated 13/14th
May,2008.

3. When the special appeal was
being heard, a preliminary objection was
raised by learned counsel for the
respondents/writ petitioner that the order
dated 2.6.2008 being an order passed by a
Vacation
Judge,
exercising
the
jurisdiction of the Division Bench, the
Special Appeal did not lie. Reliance was
placed on a Division Bench, the Special
Appeal did not lie. Reliance was placed
on a Division Bench judgement reported
in 1985 UPLBEC 1064 Allahabad Galla
Tilhan Vyapari Sangh, 25 Muthiganj
and others Vs. Krishi Utpadan Mandi
Samiti, Allahabad and others. The
preliminary objection was refuted by
learned counsel for the appellant relying
on another Division Bench judgment of
this Court reported in 2004(4) AWC 3162
State of U.P. & others Vs. Smt. Meera
Sankhwar and others for the proposition
that an order passed by learned single
judge during vacations exercising the
jurisdiction of Division Bench, does not
become order of Division Bench and
Special Appeal is maintainable. The
Division Bench hearing the Special
Appeal vide its detailed order dated
14.7.2008 referred above noted two
questions for consideration of larger
Bench.

4. We have heard Sri A.N. Tripathi,
learned Senior Advocate appearing for the
appellant and Sri M.C. Chaturvedi,
learned Chief Standing counsel assisted
by Dr. Y.K. Srivastava, learned Standing
Counsel for the respondents.

5. Before we proceed to consider
various aspects of the issues raised, it is
relevant to have quick look on the
relevant provisions of Rules of the Court
pertaining to jurisdiction of Single
Judges, Division Benches and the
provisions if Intra-court Appeal (Letters
Patent Appeal) termed as Special Appeal
under Rules of the Court. Allahabad
High Court Rules, 1952 referred to
hereinafter as 'High court Rules' made by
High Court of Judicature at Allahabad in
exercise of the powers conferred by
Article 225 of the Constitution of India
and all other powers enabling it in that
behalf. Rule 3 which is interpretation
clause provides: (1) In these rules unless
the context otherwise requires "Bench"
includes a Judge sitting alone; "Judge"
means a Judge of the Court; "Special
Appeal" means an appeal from the
judgement of one Judge. Chapter V of
the Rules of the Court deals with the
jurisdiction of judges sitting alone or in
Division
courts.
Chapter
V
Rules
1,2,3,4,5 and 10 which are relevant for
the present controversy are quoted
below:

"1.Constitution of Benches:- Judges
shall sit alone or in such Division Courts
1 All] Kuldeep Kumar Tripathi V. Rang Bahadur and others
79
as may be constituted from time to time
and do such work as may be allotted to
them by order of the Chief Justice or in
accordance with his directions.

2. Jurisdiction of a single Judge:-
Except as provided by these Rules or
other law, the following cases shall be
heard and disposed of by a Judge sitting
alone, namely---

(I) a motion for the admission of a
memorandum of appeal or cross objection
or application or for ex parte interim
order on an application.
[(ii)(a) a civil [***] Second Appeal from
a decree, including an appeal arising out
of a case instituted in a revenue court, in
which the value of appeal for the purpose
of jurisdiction does not exceed [one lakh]
rupees;
(aa) A Civil first Appeal instituted
before[or after] the commencement of the
U.P. Act No. 17 of 1991) from a decree
including an appeal arising out of a case
instituted in a revenue court in which the
value of appeal for the purpose of
jurisdiction does not exceed five lakh
rupees.

First Appeal instituted before or after the
commencement of the [U.P. Civil Laws
Amendment Act of 1991 (U.P. Act No. 17
of 1991) from a decree including an
appeal arising out of a case instituted in a
revenue court in which the value of
appeal for the purpose of jurisdiction
does not exceed [five lakh rupees;

(b) an appeal under Section 28 of the
Hindu Marriage Act, 1995;
(c) any other civil appeal in which the
value of the appeal does not exceed two
lakh rupees;

Provided that where an ad valorem
court-fee has been paid such value shall
be deemed to be the amount on which
such court-fee has been paid;
(iii) a civil revision;
(iv) an application for the withdrawal of
an appeal or application, or for a consent
decree or order, which is uncontested or
which is made in a case which be heard
under these Rules by a judge sitting
alone;
(v) Any other application which is not---

(a) an application[***] under Section 5
of the limitation Act, 1963 in a case which
cannot be heard by a judge sitting alone;

(b) [***]
(c) an application 53 other than an
application for interim order to which
Chapter XXII, Part IV applies.
(d) an
application
other
than
an
application for interim order which by
these Rules or other law is required to be
heard by a Bench of two or mote Judges;
(e) an
application
other
than
an
application for interim order under
chapter IX, Rule 10; or
(f) [***]

(vi) a suit or a proceeding in the nature
of a suit coming before the Court in the
exercise of its ordinary or extraordinary
original civil testamentary or matrimonial
jurisdiction including a proceeding under
the
Indian
Trusts
Act,
1882
the
Companies Act, 1956 or the Indian
patents and Designs Act, 1911;
(vii) a criminal appeal, application or
reference except-

(a) an appeal or reference in a case in
which
a
sentence
of
death
or
imprisonment for life has been passed
80 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
from the stage of admission including
consideration of bail onwards;
(b) "an appeal under section 378 of the
code of criminal procedure, 1973 from an
order of acquittal in respect of an offence
for which the maximum punishment is
either life imprisonment or death."
(c) (***)
(d) a case in which notice has been
issued under 58 Section 401 of the code of
criminal procedure, 1973 to an accused
person to appear and show cause why his
sentence should not be enhanced;
(e) [***]
(f) an application to which Chapter XXI
part IV applies;

(viii) a case coming before the Court in
the
exercise
of
its
ordinary
or
extraordinary
original
criminal
jurisdiction;
(ix) an appeal or revision from an order
passed under Section340, 341 or 343 of
the Code of Criminal Procedure, 1973:

Provided that:-

(a) the Chief Justice may directed that
any case or class of cases which may
be heard by a Judge sitting alone
shall be heard by a Bench of two or
more Judges or that any case or class
of cases which may be heard by a
bench of two or more Judges, by a
Judge sitting alone;

(b) a Judge may, if he thinks fit, refer a
case which may be heard by a Judge
sitting alone or any question of law
arising therein for decision to a
larger Bench; and
(c) a Judge before whom any proceeding
under the Indian Trusts Act, 1882, the
Companies Act, 1956 or the Patents
and Designs Act, 1911, is pending
may with the sanction of the Chief
Justice, obtain the assistance of one
or more other Judge for the hearing
and determination of such proceeding
or of any question or questions
arising therein;

3. Case to be decided by three
Judges:- A reference under Section 57 or
60 of the Indian Stamp Act, 1899 shall be
heard and disposed of by a Bench of not
less than three Judges.
4. Proceedings under the Legal
Practitioners Act, 1879:-
(1) A
proceeding
under
Legal
Practitioners Act, 1879, against a pleader
or
Mukhtar
with
respect
to
any
misconduct or his conviction for any
criminal offence shall be heard and
disposed of; by a Bench of not less than
two Judges
(2) An enquiry under Section 36 of the
Legal Practitioners Act, 1879, shall be
made by Bench or not less than two
Judge.
5. Cases withdrawn under Act. 228 of the
Constitution:- A case withdrawn from a
court subordinate to the Court under Art.
228 of the Constitution shall be heard by
a Bench of two or more Judges specially
appointed by the Chief Justice."

"10.
Judge
on
duty
during
vacation:- (1) Criminal work shall
continue to be dealt with during the
vacation by such Judges as may be
appointed for the purpose by the Chief
Justice.

They may also exercise original,
appellate,
revisional,
civil
or
writ
jurisdiction vested in the Court in fresh
matters which in their opinion require
immediate attention.
Such Jurisdiction may be exercised even
in cases which are under the Rules
1 All] Kuldeep Kumar Tripathi V. Rang Bahadur and others
81
cognizable by two or more Judges, unless
the case is required by any other law to
be heard by more than one Judge.
(2) Subject to any general or special
order of the Chief Justice, the senior most
vacation Judge at Allahabad or Lucknow,
as the case may be, shall in the absence of
the Chief Justice, exercise jurisdiction at
Allahabad or Lucknow, as the case may
be, in connection with the arrangement of
Benches, listing of cases and other like
matters."

6. Chapter VIII which deals with
Misc. provisions contains Special Appeal
in Rule 5. Chapter VIII Rule 2 provides
that
any
function
which
may
be
performed by the Court in the exercise of
its original or appellate jurisdiction may
be performed by any judge or by any
Division Court Appointed or constituted
for such purpose in pursuance of Article
225 of the Constitution. Chapter VIII
Rules 2 and 5 are quoted below:

"2. Powers of a single Judge and
Division Court:- Any function which may
be performed by the court in the exercise
of its original or appellate jurisdiction
may be performed by any judge or by any
Division Court appointed or constituted
for such purpose in pursuance of Article
225 of the constitution."

"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 or 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 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 Uttar
Pradesh Act or under any Central Act,
with respect to any or the matters
enumerated in the State list or the
Concurrent List in the Seventh Schedule
to the Constitution, or (b) or the
Government or nay 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."

Chapter IX deals with appeals and
applications. Chapter IX Rule 10(i) is
quoted as below:

"10. Special Appeal:-(1) A person
desiring to prefer a Special Appeal from
the judgment o one Judge passed in the
exercise or original jurisdiction shall
present a duly stamped memorandum of
appeal accompanied by a copy of the
judgment appealed from within thirty
days from the date of the judgement. The
time requisite for obtaining the copy shall
be excluded in computing the said period
of thirty days."

7. The provisions as quoted above,
provides that judges shall sit alone or in
Division Courts as may be constituted to
them by order of the Chief Justice or in
accordance with his directions. Chapter V
Rule 2 provides jurisdiction of a Single
Judge. The proviso to Rule 2 also
provides that Hon'ble the Chief may direct
that any case or class of cases which may
be heard by a judge sitting alone shall be
heard by a Bench of two or more Judges
or that any case or class of cases which
may be heard by a Bench of two or more
82 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
Judges, By a Judge sitting alone. A
perusal of Chapter V Rule 10 also
indicated=s that during summer vacations,
the judges appointed for the purpose by
the Hon'ble the Chief Justice may also
exercise the original, appellate, revisional,
civil or writ jurisdiction vested in the
Court in fresh matters, even in the cases
which are under the Rules cognizable by
two or more judges, unless the case is
required by any other law to be heard by
more than one judge. The provisions
clearly indicate that during summer
vacations, a judge sitting alone can
exercise jurisdiction as appointed by
Hon'ble the Chief Justice even in cases
which are under rules cognizable by two
or more judges.

8. Before we proceed to examine the
submission in detail, it is useful to refer
the legislative history of the High Court,
jurisdiction exercised by Single Judges,
Division Benches, Power of the Chief
Justice and the extent of the power of the
Chief Justice to allocate the jurisdiction to
Judges of the High Court.

9. The High Court Act, 1861, which
received the Royal assent on 6.8.1961, the
present legislation which authorised the
establishment of the High Court of
Judicature in India. Section 13 of the Act,
1861 provided as follows;

"Subject to any laws or regulations
which may be made by the Governor-
General in Council, the High Courts
established in any Presidency under this
Act may, by its own rules, provide for the
exercise, by one or more Judges or by
Division Courts constituted by two or
more Judges of the said High Court of the
original and appellate jurisdiction vested
in such Court, in such manner as may
appear to such Court to be convenient for
the due administration of justice."

10. The High Court of Judicature at
Allahabad was established by letters
Patent were subject to Legislative power
of the Governor General in Legislative
council and also the Governor General in
council.

The government of India Act, 1915
section 108 provided as follows:-

"108.(1) Each High Court may by its
own rules provide as it thinks fit for the
exercise, by one or more judges or by
division Courts constituted by two or
more judges of the High Court of the
original and appellate jurisdiction vested
in court.
(2) The Chief Justice of each High court
shall determine what judge in each case is
to sit alone, and what judges of the court,
whether with or without the Chief Justice,
are to constitute the several division
courts."

11. The Government of India Act,
1935 repealed Government of India Act
1915 and re-enacted with modification.
Section 223 of the said Act reads as
follows:

"223. Subject to the provisions of
this part of this Act, to the provisions of
any order in Council made under this or
any other Act, to the provision of any
order
made
under
the
Indian
Independence Act 1947, and to the
provisions of any Act of the appropriate
Legislature enacted by virtue of powers
conferred on that legislature by this Act,
the
jurisdiction
of,
and
the
law
administered in, any existing High Court,
and the respective powers of the judges
1 All] Kuldeep Kumar Tripathi V. Rang Bahadur and others
83
thereof in relation to the administration of
justice in the court, including any power
to make rules of Court and to regulate the
sitting of the Court and of members
thereof sitting alone or in division courts,
shall be the same as immediately before
the establishment of the Dominion."

12. Clause 10 of the Letters Patent
provided for the appeal to the High Court
from a judgement of one Judge. Clause 27
provides for power of single Judge and
Division Courts. Clauses 10 and 27 are
quoted herein below.

"10. and we do further ordain that
an appeal shall lied to the said High
Court of judicature at Allahabad from the
judgment (not being a judgment passed in
the exercise of appellate jurisdiction by a
Court subject to the superintendence of
the said High Court and not being an
order made in the exercise of revisional
jurisdiction, not being a sentence or order
passed or made in the exercise of the
power of superintendence under the
provisions
of
Section
107
of
the
Government of India Act, or in the
exercise of Criminal jurisdiction) of one
judge of the said High Court or one Judge
of any Division Court, pursuant to section
108 of the Government of India Act, and
that notwithstanding anything herein
before provided an appeal shall lie to the
said High court from a judgment of one
Judge of the said High Court or one
Judge of any Division Court, pursuant to
section 108 of the Government of India
Act, made on or after the first day of
February one thousand nine hundred and
twenty nine in the exercise of appellate
jurisdiction in respect of a decree or
order made in the exercise of appellate
jurisdiction by a court Subject to the
superintendence of the said High Court,
where the Judge who passed the judgment
declares that the case is a fit one for
appeal; but that the right of appeal from
other judgments of judges of the said
High Court or of such Division Court
shall be to us. Our Heirs or successors or
Our on their Privy Council, as hereinafter
provided."
"27. And We do hereby declare that
any function which is hereby directed to
be performed by the said High Court of
Judicature at Allahabad in the exercise of
its original or appellate jurisdiction may
be performed by any judge or by any
Division Court thereof appointed or
constituted for such purpose in pursuance
of Section one hundred and eight of the
Government of India Act 1915, and if
such Division Court is composed of two
or more Judges and the Judges are
divided in opinion of the majority of the
judges if there shall be a majority by if the
judges should be equally divided they
shall state the point upon which they
differ and the case shall then be heard
upon that point by one or more of the
other Judges and the point shall be
decided according to the opinion of the
majority of the Judges, who have heard
the case including those who first heard
it."

13. The Constitution of India
provides
that
jurisdiction
of
law
administered in by any High Court and
the respective powers of the judges
including the power to make rules of
Court and to regulate the sitting of the
Court and principles thereof sitting alone
or in division Courts, shall be same as
immediately before the commencement of
the constitution. Article 225 of the
constitution of India is quoted as below:
84 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
"225. jurisdiction of existing High
courts.- Subject to the provisions of this
Constitution and to the provisions of any
law of the appropriate Legislature made
by virtue of powers conferred on that
Legislature by this Constitution, the
jurisdiction of, and the law administered
in, any existing High Court, and the
respective power of the Judges thereof in
relation to the administration of justice in
the Court, including any power to make
rules of Court and to regulate the sittings
of the Court and of members thereof
sitting alone or in Division Courts, shall
be the same as immediately before the
commencement of this Constitution:

Provided that any restriction to
which the exercise of original jurisdiction
by any of the High Courts with respect to
any matter concerning the revenue or
concerning any act ordered or done in the
collection
thereof
was
subject
immediately before the commencement of
this constitution shall no longer apply to
the exercise of such jurisdiction."

14. The Rules of the Court, 1952
have been framed in exercise of the
powers
under
Article
225
of
the
Constitution. Hon'ble the chief Justice of
the Court is master of rolls and judges
sitting alone or in Division Courts of two
or more exercising the jurisdiction as
allotted to them by Hon'ble the Chief
Justice, is a scheme which flows from the
above noted provisions. Although the
rules have been framed as to what
matters shall be heard by single judge but
the Chief Justice is empowered under the
Chapter V Rule 2 that any case or class of
cases which may be heard by Judge
sitting alone shall be heard by a Bench of
two or more Judges, by a judge sitting
alone. Chapter V Rule 10 is expression of
the same very power. The vacation judges
appointed for the purpose can exercise
jurisdiction in cases which are required to
he heard by more than one Judge. There is
no dispute of the fact that Hon'ble Single
Judge who entertain the writ petition
during
vacations
on
2.6.2008
was
appointed by Hon'ble the Chief Justice for
the purpose of hearing a writ petition
which was otherwise cognizable by
Division Bench.

15. Under Chapter VIII Rule 5 of
the Rules of the Court which provides for
special appeal, the appeal is provided to
the Court from a judgement of one
Judge. The issue which has to be
answered by us is as to whether against
the order dated 2.6.2008, passed by a
vacation judge sitting alone, special
appeal under Chapter VIII Rule 5 shall lie
or special appeal is not competent since
the jurisdiction exercised by the Hon'ble
Single Judge was of the Division Bench
and the order dated 2.6.2008 is to be
assumed to be order of Division Bench.
The Division bench Judgement which has
been relied for the proposition that special
appeal is not maintainable against an
order of judge sitting alone during
summer vacation exercising jurisdiction
of Division Bench is a judgement reported
in 1985 UPLBEC1064 Allahabad Galla
Tilhan Vyapari Sangh Vs. Krishi
Utpadan (supra). The Division Bench in
the said case considered sub rule (1) of
Rule 10 of Chapter V. The writ petition of
the case was otherwise cognizable by
Division Bench but it was present during
summer vacations before vacations judge
sitting singly. The Division Bench after
noticing sub rule(1) of Rule 10 of Chapter
V gave following reasons in paragraph 2
for taking the view that special appeal
was not maintainable:
1 All] Kuldeep Kumar Tripathi V. Rang Bahadur and others
85
"2. Apart from the rules of Court no
other law e.g. Section 57(2) of the Stamp
Act which requires a reference under that
Act to be heard by three Judges has been
brought to our notice which required such
a writ petition to be heard by more than
one Judge. Under the Rules of court, the
jurisdiction which the learned Vacation
Judge exercised in deciding the writ
petition by the order appealed against
was, however, a jurisdiction which
ordinarily was exercisable only by a
division Bench. In view of the provisions
contained in Chapter V, Rule 10 of the
Rules of the court referred to above it
will, therefore, have to be assumed that
even though the order appealed against
was passed by a learned Single Judge it
was passed by a Division Bench, the same
having been passed by him as vacations
judge, for otherwise a writ petition
cognizable by a Division Bench could not
be entertains by a Single Judge. As a
necessary corollary no special appeal will
lie against that order before another
Division
Bench.
In
this
connection
reference may be made to following
observations of Lord Asquith in East End
Dwellings Consolidation Officer. Ltd. V
Finsbury Borough council, 1952 Appeal
Cases 109 page 132:

"If you are bidden to treat an
imaginary state of affairs as real, you
must surely, unless prohibited from doing
so, also imagine as real the consequences
and incidents which, if the putative State
of affairs had in fact existed, must
inevitably
have
flowed
from
or
accompanied if........... The Statute says
that you must imagine a certain state of
affairs, it does not say that having done
so, you must cause or permit your
imagination to boggle when it comes to
the inevitable corollaries of that state of
affairs."

Reference may also be useful made to the
decision of the Supreme Court in Bengal
Immunity consolidation Officer. V. State
of Bihar, AIR 1995 SC 661, wherein
paragraph 33it was held:
"When we apply a fiction all we do is
to assume that the situation created by the
fiction is true. Therefore, the same
consequences must flow from the fiction
as would have flown had the facts
supposed to be true been the actual facts
from the start."

16. The reason given by Division
Bench for coming for coming to the
conclusion is contained in following one
line.

"In view of the provisions contained
in Chapter V Rule 10 of the Rules of the
court referred to above it will, therefore,
have to be assumed that even though the
order appealed against was passed by a
learned Single Judge it was passed by a
Division Bench, the same having been
passed by him as vacations judge, for
otherwise a writ petition cognizable by a
Division Bench could not be entertained
by a Single Judge."

17. The Division Bench also relied
on two judgements, one of the House of
Lords 1952(2) A.C. 109 East End
Dwellings
co.
LD.
Vs.
Finsbury
Borough Council and another judgement
of the apex court reported in AIR 1955
S.C. 661 Bengal Immunity co. Vs. State
of Bihar. The Division Bench proceeded
to decide the controversy taking the view
that by legal fiction it has to be assumed
that the order passed by Hon'ble Single
86 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
Judge during vacations is that of a
Division Bench.

18. The two cases relied by Division
Bench were cases of legal fiction. It is
relevant to note the cases relied by
Division Bench in detail. In East End
Dwelling co. LD. Vs. Finsbury Borough
Council, the Provisions of Section 53 of
Town and country Planning Act, 1947
came up for consideration. Section 53 of
the aforesaid Act provided as follows:

"(1) Where an interest in land the
value of which is to be ascertained in
accordance with the provisions of section
51 of this Act is an interest in a
hereditament or part of a hereditament,
which has sustained war damage, and any
of that damage has not been made good at
the date of the notice to treat, then if the
appropriate payment under the War
Damage Act, 1943, would, apart from the
compulsory purchase or apart from any
direction given by the Treasury under
paragraph (b) of subsection(2) of section
20 of that Act, be a payment of cost of
works- (a) the value of the interest for the
purpose of the compensation payable in
respect of the compulsory purchase shall,
subject to the provisions of this section, be
taken to be the value which it would have
if the whole of the damage had been made
good before the date of the notice to treat;
and (b) the right to receive any value
payment or share of a value payment
which, under the War Damage Act, 1943,
is payable in respect of the interest which
is compulsorily acquired(including any
interest
payable
thereon)
shall,
notwithstanding anything in that Act, vest
in the person by whom the interest is so
acquired."

19.

The
above
provision,
contemplated taking of the value which it
would have if the whole of the damage
had been made good before the date of the
notice to treat. The provision dearly
assumed certain situation for determining
the valuation, which was a case of a legal
fiction. Lord Asquith whose opinion was
relied by the Division Bench laid down
following in his opinion:

"If you are bidden to treat an
imaginary state of affair as real, you must
surely, unless prohibited from doing so,
also imagine as real the consequences
and incidents which, if the putative state
of affairs had in fact existed, must
inevitably
have
flowed
form
or
accompanied it. One of these in this case
emancipation from the 1939 level of rents.
The statute says that you must imagine a
certain state of affairs: it does not say that
having done so, you must cause or permit
your imagination to boggle when it comes
to the inevitable corollaries of that state
of affairs."

20. The opinion of House of Lord,
Lord Asquith was also relied in Bengal
Immunity Case (supra), the Constitution
Bench judgement of the apex Court. The
Bengal Immunity Company Ltd. Case
was a case where Article 286 provides
that no law of a State shall impose, or
authorise the imposition of a tax on the
sale or purchase of the goods where such
sale or purchase takes place (a) out side
the State or(b) in the course of the import
of the goods into, or export of the goods
our of, the territory of India.

21. The explanation provided a
deeming clause for the purpose of such
clause (a).
1 All] Kuldeep Kumar Tripathi V. Rang Bahadur and others
87
"Explanation.- For the purpose of
sub-clause (a), a sale or purchase shall be
deemed to have taken place in the State in
which the goods have actually been
delivered as a direct result of such sale or
purchase for the purpose of consumption
in that State, notwithstanding the fact that
under the general law relating to sale of
goods the property in the goods has by
reason of such sale or purchase passed in
another State.
(2) Except in so for as Parliament may
by law otherwise provided, no law of a
State shall impose, or authorise the
imposition of, a tax on the sale or
purchase of any goods where such sale or
purchase take place I the course of interState trade or commerce:
Provided that the President may by order
direct that any tax on the sale or purchase
of goods which has being lawfully levied
by
the
Government
of
any
state
immediately before the commencement of
this constitution shall, notwithstanding
that the imposition of such tax is contrary
to the provisions of this clause, continue
to be levied until the thirty-first day of
march, 1951.
(3) No law made by the Legislature of a
State
imposing,
or
authorising
the
imposition of, a tax on the sale or
purchase of any such foods as have been
declared by Parliament by law to be
essential for the life of the community
shall have effect unless it has been
reserved for the consideration of the
President and has received his assent."

Justice S.R. Das C.J. In his opinion
in paragraph 31 laid down following:

31. As we have already stated, we do not
desire, on this occasion, to express any
opinion on the validity claimed for or the
infirmities imputed to any of these several
views, for, in our opinion, it is not
necessary to do so for disposing of this
appeal. Whichever view is taken of the
Explanation it should be limited to the
purpose the Constitution makers had in
view when they incorporated it in cl.(1). It
is quite obvious that it created a legal
fiction. Legal fiction are created only for
some definite purpose. Here the avowed
purpose of the Explanation is to explain
what an outside sale referred to in Subcl.(a) is.

The judicial decision referred to in
the dissenting judgement in 'State of
Travancore-Cochin v. Shanmugha Vilas
Cashew Nut Factory (U)' (Supra) at pp.
342 and 343 and the case of- "East End
Dwelling Co. Ltd. v. Finsbury Borough
Council,' 1952 AC 109 at p. 132(z) clearly
indicate that a legal fiction is to be limited
to the purpose for which it was created
and should not be extended beyond that
legitimate field. It should further be
remembered that the dominant, if not the
sole, purpose of. Art. 286 is to place
restrictions on the legislative powers of
the States, subject to certain conditions in
some cases and with that end in view Art.
286 imposes several bans on the taxing
power of the State in relation to sales or
purchases viewed from different angles
and according to their different aspects.
In some cases the ban is absolute as, for
example, with regard to outside sales
covered by cl.(1) (a) read with the
Explanation, or with regard to imports
and exports covered by cl. (1) (b) and in
some cases it is conditional , e.g., in the
cases of inter-State sales or purchases
under cl.(2) which is, in terms, made
subject to the proviso thereto and also to
the power of Parliament to lift the ban.
Again, in some cases the bans may
overlap but nevertheless, they are distinct
88 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
and independent of each other. The
operative provisions of the several parts
of Art. 286,namely, cl.(1)(a), cl.(1)(b), cl.
(2) and cl.(3) are manifestly intended to
deal with different topics and, therefore,
one cannot be projected or read into
another.
On a careful and anxious consideration of
the matter in the light of the fresh
arguments advanced and discussions held
on the present occasion we are definitely
of the opinion that the Explanation in
cl..(1) (a) cannot be legitimately extended
to cl.(2) either as an exception or as a
proviso threto or read as cirtao;ing or
limiting the ambit of cl.(2). Indeed, in
'State of Bombay v. United Motors(India)
Ltd.(b)' (supra) at p.258 and again at
p.259
the
majority
judgment
also
accepted the position that the Explanation
was not an exception or proviso either to
Cl.(1)(a) or to Cl.(2).
If, therefore, the Explanation cannot be
read into Cl.(2) because of the express
language of the Explanation and also
because of the different in the Subjectmatter of the operative provisions of the
two clauses, then it must follow that,
except in so far as Parliament may be law
provide otherwise, no State law can
impose or authorise the imposition of any
tax on sales or purchases when such sales
or purchases take place in the course of
inter-state
trade
or
commerce
and
irrespective of whether such sales or
purchases do or not fall within the
Explanation.
It is not necessary, for the purpose of this
appeal, to enter upon a discussion as to
what is exactly meant by inter-state trade
or commerce or by the phrase "in the
course of"', for, it is common ground that
the sales or purchases made by the
appellant company which are sought to be
taxed by the State of Bihar actually took
place in the course of inter-State trade or
commerce.
Parliament not having by law otherwise
provided, no State law can, therefore, tax
these sales or purchases that is to say,
Bihar cannot tax by reason of Cl.(2)
although they fall within the explanation
and other States cannot tax by reason of
both Cl.(1)(a) read with the Explanation
and Cl. (2) This Conclusion leads us now
to consider the arguments by which the
respondent State and the intervening
states which support the respondent State
seek to get over this position."

22. The apex Court referred the
decision of the House of Lords in East
End Dwelling Co. Ltd. Stating that it
clearly indicate that legal fiction is limited
to the purpose for which it was created
and should not be extended beyond that
legitimate field. Again in paragraph 33
following was laid down:

"We find no cogent reason in
support of the argument that a fiction
created for certain definitely expressed
purposes, namely, the purposes of Cl.(1)
(a) can legitimately be used for the
entirely foreign and collateral purpose of
destroying
the
intra-state
sale
or
purchase. Such metamorphosis appears to
us to be beyond the purpose and purview
of cl. (1) (a) and the Explanation thereto.
When we apply a fiction all we do is to
assume that the situation created by the
fiction is true. Therefore, the same
consequences must flow from the fiction
as would have flown had the facts
supposed to be true been the actual facts
from the start."

23. Bhagwati J. taking the same
view laid down following in paragraph
107:
1 All] Kuldeep Kumar Tripathi V. Rang Bahadur and others
89
"107. As to reason (5): the argument
totally ignores the purpose and efficacy of
a legal fiction. A legal fiction presupposes the correctness of the state of
facts on which it is based and all the
consequences which flow from that state
of facts have got to be worked out to their
logical extent. But due regard must be
had in this behalf to the purpose for which
the legal fiction has been created. If the
purpose of this legal fiction contained in
the Explanation to Article 286(1)(a) is
solely for the purpose of sub-clause(a) as
expressly stated it would not be legitimate
to travel beyond the scope of that purpose
and read into the provision any other
purpose howsoever attractive it may be."

24.