# Rajiv Saxena and others v. State of U.P. and others - **Citation:** (2010) 2 ILRA 677 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2010-07-07 - **Case number:** Special Appeal No. 866 of 2010 - **Bench:** Ferdino Inacio Rebello, C.J. Amreshwar Pratap Sahi - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajiv-saxena-and-others-v-state-of-u-p-and-others-41676 - **Pages:** 4 ## Headnote Dr. H.N. Tripathi C.S.C. Allahabad High Court Rules 1952, Chapter VIII Rule-5- Special appealarises out from the order passed by Tribunal under Section 25 of Society Registration Act-Single Judge allowed the petition on ground Tribunal lacks with power of granting interim orderheld-Special appeal not maintainableHowever the direction issued to dispose of election petition as itself within 2 month. Held: Para 9 In our opinion, this view correctly reflects the true scope and intent of Rule ## Text 2 All] Rajiv Saxena and others V. State of U.P. and others 677 without force. Entry in the revenue record are open to attack that it was made fraudulently or surreptitiously. Fraud rob a document of all its legal effect and cannot found a claim to possessory title. This Patta and entry in the revenue record were not issued and made in accordance with the provisions of Law. This have no legal value. If ignoring the same at the time of PADTAL and initial stage of the proceedings to keep the record of right up to date and correct Consolidation Officer has made entry of Reserved Forest on the land in dispute along with other land shown in the Notification under Section 4 and 20 of the Act, in these circumstances, the Act of Consolidation Officer cannot be held illegal and without jurisdiction. By cancelling the impugned order of three Consolidation authorities, if again an entry in the revenue record of the name of the petitioner is made it will be a wrong and void entry in the record. No useful purpose will be served by passing such order because again Forest Department will take steps for expunging this entry. It is established law that even if ground exists, court can refuse to interfere in writ jurisdiction with the impugned order, if there is no miscarriage of justice by the same. 13. From the facts and circumstances of the case and taking into consideration arguments of the parties' counsel, I am of the view that petitioner has not approached this court with clean hands. No interference is required by this Court in the matter in writ jurisdiction. Writ Petition has no force, accordingly the same is hereby dismissed. --------- APPELLATE JURISDICTION CIVIL SIDE DATED: ALLAHABAD 07.07.2010 BEFORE THE HON'BLE FERDINO INACIO REBELLO, C.J. THE HON'BLE AMRESHWAR PRATAP SAHI, J. Special Appeal No. 866 of 2010 Rajiv Saxena and others ...Appellants Versus State of U.P. and others ...Respondents Counsel for the Petitioner: Sri Radha Kant Ojha, Sri Ankit Saran Counsel for the Respondents: Dr. H.N. Tripathi C.S.C. Allahabad High Court Rules 1952, Chapter VIII Rule-5- Special appealarises out from the order passed by Tribunal under Section 25 of Society Registration Act-Single Judge allowed the petition on ground Tribunal lacks with power of granting interim orderheld-Special appeal not maintainableHowever the direction issued to dispose of election petition as itself within 2 month. Held: Para 9 In our opinion, this view correctly reflects the true scope and intent of Rule 5. A proper reading of the rule and its intendment is that once an order passed by a competent tribunal is the subject matter of an exercise of this Court in its extraordinary jurisdiction under Article 226 and/or 227, then no intra court appeal would lie. All that is required is that the judgment, order or award is by a tribunal, court or statutory arbitrator or 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 678 INDIAN LAW REPORTS ALLAHABAD SERIES [2010 any matter enumerated in the State List or Concurrent list. The only exclusion, therefore, is orders or decision in the course of an administrative enquiry and as noted in Sardar Mohd. Ansar (supra), if the appeal itself was not maintainable. Case law discussed: 1994(2) ESC 641 Alld, 2003 (1) UPLBEC 4961 (Delivered by Hon'ble Ferdino Inacio Rebello, C.J.) 1. This special appeal is against an order passed by the learned Single Judge dated 11.5.2010. A writ petition was filed before the learned Single Judge against an order of the Prescribed Authority hearing an election dispute under Section 25 of the Societies Registration Act, 1860. The Tribunal in the purported exercise of its powers had granted interim relief in an election dispute. The stand of the petitioners was that the learned Tribunal has no jurisdiction to grant the interim relief in the absence of any specific power so conferred on the Tribunal. The contention of the respondent-appellants herein was that the power to grant final relief would include the power of granting interim relief. 2. The learned Single Judge after considering the rival contentions held that there is no power in the Tribunal to grant interim relief. It is against that order the present special appeal has been filed. 3. A preliminary objection has been taken on behalf of the respondents that in terms of Rule 5 of Chapter VIII of the Allahabad High Court Rules, 1952 a special appeal would not be maintainable as the petition arose in respect of an order passed by the Tribunal. The relevant rule is being quoted below: "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 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 a tribunal Court or statutory arbitrator tor 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." 4. On the other hand the learned counsel for the appellant placed before us several judgments of Division Benches of our court to point out that in the instant case the appeal is maintainable and the Tribunal has jurisdiction to grant interim relief. 5. In the case of Sardar Mohd. Ansar Vs. State of U.P. reported in 1994(2) ESC 641 Alld the issue before the learned Division Bench was whether the special appeal would lie. An appeal was preferred under the provisions of the U.P.Intermediate Education Act 1921 by 2 All] Rajiv Saxena and others V. State of U.P. and others 679 a person belonging to the clerical cadre. A perusal of the provisions shows that such an appeal was not maintainable as only a teacher could maintain an appeal. The Division Bench proceeded to observe that since the appeal could not be instituted by a class III employee it was non-est. Though that order was the subject matter of proceedings so far as the court under Articles 226 and 227 as the appeal itself was not maintainable taking recourse to the extra ordinary jurisdiction was of no consequences. The special appeal in this circumstance under Rule 5 would be maintainable as it would not be an order passed by a Tribunal competent to entertain an appeal in the subject matter. 6. The aforesaid judgment in our opinion is clearly distinguishable. 7. In the instant case the Prescribed Authority as a Tribunal had did not lack patent jurisdiction to entertain the election dispute. The only dispute is whether in exercise of such jurisdiction it could grant interim relief. In such circumstances the reliance sought to be placed in the judgment in the case of Sardar Mohd. Ansar (supra) is clearly distinguishable on the facts of the present case. 8. Attention was also invited to the observations of the Division Bench in the case of Vajara Yojna Seed Farm, Kalyanpur (M/s) Vs. Presiding Officer reported in 2003 (1) UPLBEC 4961 and paragraphs 49 and 50 were referred. A perusal of the said observations will make it clear that in so far as the learned Division Bench is concerned it held that once the Tribunal has jurisdiction then irrespective of the fact whether the award was legal or illegal, a special appeal against order of learned Single Judge in exercise of jurisdiction under Articles 226 and 227 would not be maintainable. 9. In our opinion, this view correctly reflects the true scope and intent of Rule 5. A proper reading of the rule and its intendment is that once an order passed by a competent tribunal is the subject matter of an exercise of this Court in its extraordinary jurisdiction under Article 226 and/or 227, then no intra court appeal would lie. All that is required is that the judgement, order or award is by a tribunal, court or statutory arbitrator or 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 matter enumerated in the State List or Concurrent list. The only exclusion, therefore, is orders or decision in the course of an administrative enquiry and as noted in Sardar Mohd. Ansar (supra), if the appeal itself was not maintainable. 10. In the instant case the only issue is as to whether the Tribunal has specific jurisdiction to grant interim relief or not. In other words the Tribunal could exercise jurisdiction may be rightly or wrongly. That order was subject matter of the writ petition before the learned Single Judge. 11. In our opinion the special appeal is not maintainable. In the light of that the special appeal is dismissed. The Tribunal is directed to dispose of the election petition within two months from the date of production of a certified copy of this order before it. --------- 680 INDIAN LAW REPORTS ALLAHABAD SERIES [2010 APPELLATE JURISDICTION CIVIL SIDE DATED: ALLAHABAD 15.07.2010 BEFORE THE HON'BLE FERDINO INACIO REBELLO, C.J. THE HON'BLE AMRESHWAR PRATAP SAHI, J. Special Appeal No. 892 of 1999 M/s S.R. Paper Cones, Ghaziabad ...Appellant/Petitioner Versus Addl. Labour Commissioner, Ghaziabad and others ...Respondents Counsel for the Petitioner: Sri V.R. Agarwal Counsel for the Respondents: C.S.C. U.P. Industrial Dispute Act-1947Section 6(4) Second Reference-Can be remitted for reconsideration-but once State Govt refused to publish the award-same reference can not be subject matter of conciliation preceding-view taken by Single Judge regarding second reference be treated as reconsideration. Held Para 9 In the light of the above, in our opinion, the second reference, as made, is without jurisdiction. Once a reference is made, it is not open to this Court to amend the reference. The power to amend the reference is with the appropriate Government which, in the present case, is the State. Apart from that, the learned Single Judge himself arrived at a finding that the entire exercise was without jurisdiction. After having so held, it was not open for the learned Single Judge to direct that fresh reference shall be treated as an order for reconsideration by the Labour Court. (Delivered by Hon'ble Ferdino Inacio Rebello, C.J.) 1. In spite of service of the appeal on the learned counsel for respondent no.3, no appearance has been filed. 2. The appellants, original petitioners, are aggrieved by order dated 06.08.1999 passed by the learned Single Judge, whereby the learned Judge, in order to do complete justice between the parties, directed that fresh reference shall be treated by the Labour Court as an order for reconsideration under sub-section (4) of Section 6 of the Uttar Pradesh Industrial Disputes Act, 1947 and will be decided on the evidence already on record, after hearing both the parties. 3. It is the submission on behalf of the appellants that considering the provisions of sub-section (4) of Section 6 of the Uttar Pradesh Industrial Disputes Act, 1947 (hereinafter referred to as the 'State Act'), the learned Judge could not have issued aforesaid directions. 4. A few facts may be set out. A reference was made on 13.04.1992. The reference pertains to the termination of services of respondent no.3. An award came to be passed by the Labour Court on 02.03.1995, whereby the reference was answered against the respondent no.3. The appropriate Government, which is the State Government in the present case, refused to publish the award, against which the appellants herein filed a writ petition challenging the act of the State Government refusing to publish the award. The said petition was dismissed. It is to be noted that the respondent workman did not challenge the said award.