# Ramjit Ram Yadav v. State of U.P. & Ors

- **Citation:** (2024) 7 ILRA 6
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-07-08
- **Case number:** Special Appeal No. 31 of 2021
- **Bench:** Arun Bhansali, C.J. Manoj Kumar Gupta, Vikas Budhwar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ramjit-ram-yadav-v-state-of-u-p-ors-52247
- **Pages:** 24

## Headnote

C.S.C., Sunil Kumar Misra

A.
Uttar
Pradesh
Road
Transport
Corporation Employees 16 (Other than
Officers) Service Regulations, 1981 -
Special Appeal Maintainable or not ? -
Orders impugned in the writ petition were
passed by the Officers/Authority in the exercise
of appellate and revisional jurisdiction conferred
under the Regulations, 1981- Held- Road
Transport Corporations Act, 1950 has been
made by the Parliament under Item 43 of List-I
- Regulations have been framed by UPSRTC in
the exercise of the power delegated to it by
virtue of Section 45 of the Road Transport
Corporations Act, 1950 - An Intra-court appeal
against a judgment of a Single Judge in a writ
proceeding preferred against an order passed
by an authority exercising appellate/revisional
power
under
U.P.
State Road
Transport
Corporation Employees (Other than Officers)
Service Regulations, 1981, is maintainable -
Special appeal would be maintainable as the
power has been exercised under the regulations
framed under a Central Act in respect of matters
enumerated in the Union List. It would,
therefore, not fall within the ambit of the
exclusions stipulated under Chapter VIII Rule 5
of the Rules of Court (Para 67)
B.
Uttar
Pradesh
Road
Transport
Corporation Employees 16 (Other than
Officers) Service Regulations, 1981 -
Regulations have been framed by UPSRTC in
the exercise of the power delegated to it by
virtue of Section 45 of the Road Transport
Corporations Act, 1950 - Road Transport
Corporations Act, 1950 has been made by the
Parliament under Item 43 of List-I - Act is
referable to List I Entry 43 and 44. The power to
legislate in relation to the 'regulation of the
corporations'
under
the
aforesaid
Entries
includes, within its umbrella, the regulation of
its workforce. The same is an essential part of
incorporation
and
making
functional
any
corporation
and
in
ensuring
its
proper
functioning. Merely because Section 45(2)(c)
invests the Corporation with the power to make
Regulations, inter alia, concerning the conditions
of appointment and service of its employees,
would not bring the legislation within the ambit
of List-III Item No. 22 or 24 (Para 61)

C. Interpretation - Doctrine of 'pith and
substance' - The main object and the true
scope and effect of legislation is determined in
its entirety, and even if some topic incidentally
encroaches on a matter assigned to another
Legislature, it does not detract from the true
nature of legislation or the field under which it has
been enacted. The theory of pith and substance is
applied without exception in interpreting legislative
competence qua the Entries in various Lists under
the Seventh Schedule to the Constitution - If, in
pith and substance, the legislation falls within one
entry or the other, but some portion of the subject
matter of the legislation incidentally trenches upon
and might enter a field under another List, then it
must be held to be valid in its entirety, even
though it might incidentally trench on matters
which are beyond its competence (Para 44,
60).

Special Appeal allowed. (E-5)

List of Cases cited:

## Text

_Characters 0–39,964 of 81,046. This is a partial read: ask again with offset=39964 for what follows._

6 INDIAN LAW REPORTS ALLAHABAD SERIES
(2024) 7 ILRA 6
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.07.2024

BEFORE

THE HON'BLE ARUN BHANSALI, C.J.
THE HON'BLE MANOJ KUMAR GUPTA, J.
THE HON'BLE VIKAS BUDHWAR, J.

Special Appeal No. 31 of 2021

Ramjit Ram Yadav ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Ajay Kumar Srivastava, Ramesh Chandra
Dwivedi, Samir Sharma (Senior Adv.)

Counsel for the Respondents:
C.S.C., Sunil Kumar Misra

A.
Uttar
Pradesh
Road
Transport
Corporation Employees 16 (Other than
Officers) Service Regulations, 1981 -
Special Appeal Maintainable or not ? -
Orders impugned in the writ petition were
passed by the Officers/Authority in the exercise
of appellate and revisional jurisdiction conferred
under the Regulations, 1981- Held- Road
Transport Corporations Act, 1950 has been
made by the Parliament under Item 43 of List-I
- Regulations have been framed by UPSRTC in
the exercise of the power delegated to it by
virtue of Section 45 of the Road Transport
Corporations Act, 1950 - An Intra-court appeal
against a judgment of a Single Judge in a writ
proceeding preferred against an order passed
by an authority exercising appellate/revisional
power
under
U.P.
State Road
Transport
Corporation Employees (Other than Officers)
Service Regulations, 1981, is maintainable -
Special appeal would be maintainable as the
power has been exercised under the regulations
framed under a Central Act in respect of matters
enumerated in the Union List. It would,
therefore, not fall within the ambit of the
exclusions stipulated under Chapter VIII Rule 5
of the Rules of Court (Para 67)
B.
Uttar
Pradesh
Road
Transport
Corporation Employees 16 (Other than
Officers) Service Regulations, 1981 -
Regulations have been framed by UPSRTC in
the exercise of the power delegated to it by
virtue of Section 45 of the Road Transport
Corporations Act, 1950 - Road Transport
Corporations Act, 1950 has been made by the
Parliament under Item 43 of List-I - Act is
referable to List I Entry 43 and 44. The power to
legislate in relation to the 'regulation of the
corporations'
under
the
aforesaid
Entries
includes, within its umbrella, the regulation of
its workforce. The same is an essential part of
incorporation
and
making
functional
any
corporation
and
in
ensuring
its
proper
functioning. Merely because Section 45(2)(c)
invests the Corporation with the power to make
Regulations, inter alia, concerning the conditions
of appointment and service of its employees,
would not bring the legislation within the ambit
of List-III Item No. 22 or 24 (Para 61)

C. Interpretation - Doctrine of 'pith and
substance' - The main object and the true
scope and effect of legislation is determined in
its entirety, and even if some topic incidentally
encroaches on a matter assigned to another
Legislature, it does not detract from the true
nature of legislation or the field under which it has
been enacted. The theory of pith and substance is
applied without exception in interpreting legislative
competence qua the Entries in various Lists under
the Seventh Schedule to the Constitution - If, in
pith and substance, the legislation falls within one
entry or the other, but some portion of the subject
matter of the legislation incidentally trenches upon
and might enter a field under another List, then it
must be held to be valid in its entirety, even
though it might incidentally trench on matters
which are beyond its competence (Para 44,
60).

Special Appeal allowed. (E-5)

List of Cases cited:

1. UPSRTC through RM Vs Abhai Raj Singh & 2
ors., Special Appeal (Defective) No. 862 of
2014, decided on 30.10.2014.

2. Jageshwar Prasad Tiwari Vs UPSRTC & ors.
2018 (4) ADJ 263 (DB)
7 All. Ramjit Ram Yadav Vs. State of U.P. & Ors.
7
3. Madan Pal Singh Vs St. of U.P. & ors., Special
Appeal No. 1488 of 2006, decided on 22.5.2014.

4. South Asia Industries Pvt. Ltd. Vs S.B. Sarup
Singh AIR 1965 SC 1442

5. Sharda Devi Vs St. of Bih. (2002) 3 SCC 705

6. Sheet Gupta Vs St. of U.P. (FB) AIR 2010 All
46

7. Dr. Indramani Pyarelal Gupta & ors. Vs W.R.
Natu & ors. AIR 1963 SC 274

8. UPSRTC through R.M. Vs Abhay Raj Singh &
2 ors. Special Appeal Defective No. 862 of 2014
decided on 30.10.2014

9. A.P. Jeet Singh (Constable) Vs St. of U.P. &
ors. 2013 (8) ADJ 715 (DB)

10. M/s Vajara Yojna Seed Farm, Kalyanpur &
ors. Vs Presiding Officer, | Lower Court & anr.
2003 ALL.L. J 883

11. St. of U.P. & ors. Vs Madhav Prasad Sharma
2011 (2) SCC 212

(Delivered by Hon'ble Manoj Kumar
Gupta, J.)

1. The present reference to Larger
Bench is on the following questions: -

"(a) Whether an intra court appeal
under Chapter VIII Rule 5 of the High
Court Rules against a judgment of single
Judge in a writ proceeding under Article
226 of the Constitution of India preferred
against an order passed by an authority
exercising appellate or revisional power
under
U.P.
State
Road
Transport
Corporation
Employees
(Other
than
Officers) Service Regulations, 1981 would
be maintainable?

(b) Whether the Division Bench
decision in the case of U.P.S.R.T.C. Thru
R.M. Vs. Abhay Raj Singh and 2 others
(supra) or the earlier two Division Bench
decisions,
namely,
Jageshwar
Prasad
Tiwari Vs. U.P.S.R.T.C. and others (supra)
and Madan Pal Singh Vs. State of U.P. and
others (supra), lays down the correct law ?"

The backdrop in which the
reference has been made:

2. The appellant was a Conductor
in
the
U.P.
State
Road
Transport
Corporation (for short hereinafter referred
to as "UPSRTC"). It has been constituted
by a notification dated 31.5.1972 by the
State Government, issued under Section 3
of the Road Transport Corporations Act,
1950 (for short hereinafter referred to as
"the Act"). The appellant was removed
from service by order dated 5.10.2019,
passed by Assistant Regional Manager,
UPSRTC (the sixth respondent herein). The
appellant being aggrieved thereby, filed a
departmental appeal, but it came to be
dismissed by order dated 16.3.2020, passed
by Regional Manager, UPSRTC (the fifth
respondent herein). The matter was taken
up in revision, which too came to be
dismissed by order dated 12.11.2020,
passed by Chairman, UPSRTC (the fourth
respondent
herein).
The
appellant
challenged all the aforesaid orders by filing
Writ - A No. 254 of 2021 before this
Court. It has been dismissed by a learned
Single Judge by order dated 13.1.2021 on
the ground of availability of alternative
remedy.

3. The appellant has thereafter
preferred the instant appeal challenging the
judgment of the learned Single Judge.

4. When the appeal came up for
consideration before a Division Bench of
this Court, it was contended on behalf of
the respondents that special appeal would
not be maintainable in view of the
8 INDIAN LAW REPORTS ALLAHABAD SERIES
exceptions contained in Chapter VIII Rule
5 of the Rules of Court. Reliance was
placed on a Division Bench judgment of
this Court in UPSRTC through RM vs.
Abhai Raj Singh and 2 others1. On the
other hand, it was contended on behalf of
the appellant that special appeal would be
maintainable as the power has been
exercised under the regulations framed
under a Central Act in respect of matters
enumerated in the Union List. It would
therefore not fall within the ambit of the
exclusions stipulated under Chapter VIII
Rule 5 of the Rules of Court. In support of
the contention, reliance was placed on
Division Bench judgments of this Court in
Jageshwar Prasad Tiwari vs. UPSRTC
and Others2 and Madan Pal Singh vs.
State of U.P. and Others3.

5. The Division Bench which
heard the appeal noticed that the judgment
in Abhai Raj Singh and 2 others1
proceeded on a wrong assumption that the
legislation under which the orders were
passed by the officers/authority, was a State
Legislation, although it is a Central
Legislation, but as the said judgment was
passed by Bench of co-equal strength
therefore,
having
regard
to
judicial
propriety, the matter was referred to the
Larger
Bench
after
formulating
the
aforesaid questions.

6. Before we proceed to record the
rival contentions, it would be advantageous
to have an overview of the existing legal
provisions and the legislative history of
special appeals or Letters Patent Appeals as
was the nomenclature assigned to such
appeals
at
the
inception
of
such
jurisdiction.

History of Statutory Regime of
Letters Patent Appeals: -
7. On 17th March, 1866 High
Court of Judicature for the North-Western
Provinces was established by the Royal
Charter. It conferred upon the newly
formed High Court, Civil, Criminal,
Testamentary and Intestate as well as
Matrimonial jurisdiction. Clause 10 of the
Letters Patent dated 17th March, 1866
provided for appeals to the High Court
from judgement of one Judge in certain
circumstances. As intra-court appeal was a
creation of Letters Patent, it was christened
as Letters Patent Appeal. Clause 10 reads
as follows:-

 "10. And We do further ordain
that an appeal shall lie to the said High
Court of Judicature for the North-Western
Provinces from the judgement (not being a
sentence or order passed or made in any
criminal trial) of one judge of the said High
Court or of one judge of any Division
Court, pursuant to Section 13 of the said
recited Act, and that an appeal shall also lie
to the said High Court from the judgment
(not being a sentence or order as aforesaid) of
two or more Judges of the said High Court, or
of such Division Court, wherever such Judges
are equally divided in opinion, and do not
amount in number to a majority of the whole of
the Judges of the said High Court at the time
being; but that the right of appeal from other
judgments of Judges of the said High Court, or
of such Division Court in such case shall be to
Us, Our Heirs or Successors, in Our or their
Privy Council, as hereinafter provided."

8. By a supplementary Letters Patent
dated 11th March, 1919, the name of the High
Court was changed to - High Court of
Judicature at Allahabad.

9. On 28th January, 1928, Clause
10 of the Letters Patent was amended as
follows:
7 All. Ramjit Ram Yadav Vs. State of U.P. & Ors.
9
 "10. And We do further ordain
that an appeal shall lie to the said High
Court of Judicature at Allahabad from the
judgment (not being a judgment passed 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, and not being an order made in
the exercise of revisional jurisdiction, and
not being a sentence or order passed or
made in the exercise of the power of
superintendence
under
the
provisions
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 here- inbefore 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 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 to Us, Our
Heirs or Successors in Our or Privy
Council, as herein provided."

10. On 26th January, 1929, Clause
10 was further amended so as to provide as
follows:

 "In the tenth clause of the said
Letters Patent between the words 'pursuant
to section 108 of the Government of India
Act, made' and the words 'in the exercise of
appellate jurisdiction' the words 'or or after
the first day of February One thousand nine
hundred and twenty-nine' shall be inserted."

11. Clause 10, after amendment,
reads as follows:-

 "10. And we do further ordain
that an appeal shall lie 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, and 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
hereinbefore
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 or their Privy Council, as
hereinafter provided."

12. After independence, the Chief
Court of Oudh was amalgamated with the
10 INDIAN LAW REPORTS ALLAHABAD SERIES
High Court of Judicature at Allahabad in
pursuance
of
U.P.
High
Courts
(Amalgamation)
Order,
1948
vide
notification published in Government of
India Gazette (Extraordinary) dated 19th
July, 1948 and the Letters Patent of Her
Majesty dated 17th March, 1866 stood
abrogated. Clause 17 of the said Order
provided as follows:

 "17. As from the appointed day-

(a) the Letters Patent of Her
Majesty, dated the 17th March, 1866,
establishing the High Court of Judicature
for the North-Western Provinces and
Chapter II of the Oudh Courts Act, 1925
(U. P. Act .IV of 1925), shall cease to have
effect except for the purpose of construing,
or giving effect to, the provisions of this
Order;"

13. At the same time, the
provisions of the Amalgamation Order
were made subject to any provision made
by the legislature or authority having power
to make such provision. Clause 18 of the
Amalgamation Order, which so provided, is
extracted below: -

"18. Nothing in this Order shall
prejudice the application to the new High
Court of any relevant provisions of the Act,
and this Order shall have effect subject to
any provisions that may be made on or
after the appointed day with respect to the
new High Court by any Legislature or
authority having power to make such
provision."

14. Article 225 of the Constitution
of India provided that jurisdiction and law
administered in any existing High Court
shall be the same as immediately before the
commencement of this Constitution subject
to provisions of the Constitution and to the
provisions of any law of the appropriate
legislature made by virtue of powers
conferred on that Legislature by the
Constitution.

15. The Rules of the Court were
framed by Allahabad High Court in
exercise of power conferred by Article 225
of the Constitution and all other powers
enabling in that behalf. Article 225 of the
Constitution is extracted below for ready
reference: -

 "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
powers 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."

16. In Rules of the Court framed in
1952, Chapter VIII, Rule 5 provided for
intra-court appeal, labelled as 'special
appeal'. Chapter VIII, Rule 5 as it
originally existed in the Rules of the Court,
1952 is quoted as below: -
7 All. Ramjit Ram Yadav Vs. State of U.P. & Ors.
11
 "5. An appeal shall lie to the
Court from the judgment (not being a
judgment passed 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 Court, and not
being an order made in the exercise of
revisional jurisdiction, and not being an
order passed or made in the exercise of its
power of Superintendence, or in the
exercise of Criminal Jurisdiction of one
Judge, and an appeal shall lie to the Court
from a judgment of one Judge made 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 Court, where
the Judge who passed the judgment
declares that the cases is a fit one for
appeal."

17. In view of the circumstances
obtaining after the establishment of the
Supreme Court, a Bill was introduced,
namely, the U.P. High Court (Abolition
of Letters Patent Appeals) Bill, 1962,
with the object of abolishing appeals
against appellate jurisdiction of Single
Judge.

18. U.P. Act No.14 of 1962,
namely, the U.P. High Court (Abolition of
Letters Patent Appeals) Act, 1962 was
passed by Uttar Pradesh Legislature which
came into force with effect from 13th
November, 1962. Section 3 of the aforesaid
Act provided for abolition of special appeal
from a judgment or order of one Judge of
High Court, made in the exercise of
appellate jurisdiction, in respect of a decree
or order made by a Court subject to the
superintendence of the High Court. Section
3 of U.P. Act No.14 of 1962 is quoted as
below:--

"3. (1) No appeal, arising from a
suit
or
proceeding
instituted
or
commenced, whether prior or subsequent to
the enforcement of this Act, shall be to the
High Court from a judgment or order of
one Judge of the High Court, made in the
exercise of appellate jurisdiction, in respect
of a decree or order made by a Court,
subject to the Superintendence of the High
Court, anything to the contrary contained in
Clause 10 of the Letters Patent of Her
Majesty, dated the 17th March, 1866, read
with Clause 17 of the U.P. High Courts'
(Amalgamation) Order, 1948, or in any
other law, notwithstanding.
 (2)
Notwithstanding
anything
contained in sub-section (1) all appeals
pending before the High Court on the date
immediately
preceding
the
date
of
enforcement of this Act shall continue to lie
and
be
heard
and
disposed
of
as
heretobefore, as if this Act had not been
brought into force."

19. In view of the provisions of
U.P. Act No.14 of 1962, the Rules of the
Court, 1952 were also amended vide
notification dated 6th November, 1963.
Chapter VIII, Rule 5 was substituted by the
following Rule:---

 "5. 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) of one Judge."

20. In 1972 another Bill was
introduced to further amend the U.P. High
Court (Abolition of Letters Patent Appeals)
12 INDIAN LAW REPORTS ALLAHABAD SERIES
Act, 1962 so as to exclude Letters Patent
Appeals in cases decided by Board of
Revenue under various Tenancy Laws.

21. Accordingly, in terms of the
U.P. High Court (Abolition of Letters
Patent Appeals) Act, 1972, Section 4 stood
inserted, as follows: -

 "4. (1) No appeal, arising from a
suit
or
proceeding
instituted
or
commenced, whether prior or subsequent to
the commencement of this section, shall lie
to the High Court from a judgement or
order of one judge of the High Court, made
in the exercise of jurisdiction conferred by
Article 226 or Article 227 of the
Constitution, in respect of a judgment,
decree or order made or purported to be
made by the Board of Revenue under the
United Provinces Land Revenue Act, 1901,
or the U.P. Tenancy Act, 1939, or the Uttar
Pradesh Zamindari Abolition and Land
Reforms Act, 1950, or by the Director of
Consolidation (including any other officer
purporting to exercise the powers and to
perform
the
duties
of
Director
of
Consolidation)
under
the
U.P.
Consolidation of Holdings Act, 1953,
anything to the contrary contained in clause
ten of the Letters Patent of Her Majesty,
dated March 17, 1866, read with clauses 7
and
17
of
the
U.P.
High
Courts
(Amalgamation) Order, 1948, or in any
other law notwithstanding.

(2)
Notwithstanding
anything
contained in sub-section (1), all appeals
pending before the High Court on the date
immediately
preceding
the
date
of
commencement of this section shall be
heard and disposed of as if this section had
not been enacted."

22. That once again, further
amendment was made in the U.P. High
Court (Abolition of Letters Patent Appeals)
Act, 1962 inserting Section 5, with intent to
narrow down the scope of Letters Patent
Appeals. Newly added Section 5 is
extracted below:

 "5. (1) No appeal, arising from an
application or proceeding instituted or
commenced, whether prior or subsequent to
the commencement of this section, shall lie
to the High Court from a judgment or order
of one judge of the High Court, made in the
exercise of jurisdiction conferred by Article
226 or Article 227 of the Constitution, in
respect of a judgment or order made or
purported to be made in the exercise or
purported exercise of appellate or revisory
jurisdiction by a District Judge, Additional
District Judge, Civil Judge or Additional
Civil Judge under any Uttar Pradesh Act
(including any Central Act as amended by
an Uttar Pradesh Act) anything to the
contrary contained in clause 10 of the
Letters Patent of Her Majesty, dated March
17, 1866, read with clauses 7 and 17 of the
U.P. High Courts (Amalgamation) Orders,
1948, or in any other law notwithstanding.

 (2)
Notwithstanding
anything
contained in sub-section (1), all appeals
pending before the High Court on the date
immediately
preceding
the
date
of
commencement of this section shall be
heard and disposed of as if this section had
not been enacted."

23.

Despite
the
aforesaid
measures, the number of cases in the High
Court,
continued
to
increase
and
impediments in the way of speedy justice
could not altogether be removed. It was,
therefore, considered necessary to further
amend the U.P. High Court (Abolition of
Letters Patent Appeals) Act, 1962 with a
view to abolishing the Letters Patent
7 All. Ramjit Ram Yadav Vs. State of U.P. & Ors.
13
Appeals against the judgment or order of a
Single Judge of the High Court under
Article 226 or Article 227 of the
Constitution in respect of any judgment
order or award of the Subordinate Courts,
Tribunals or Statutory Arbitrators made in
exercise of jurisdiction under any Uttar
Pradesh Act or under any Central Act
relating to any of the matters enumerated in
the State List or Concurrent List of the
Seventh Schedule to the Constitution or in
respect of any order made in exercise of the
appellate or revisional jurisdiction under
any such Act, by the State Government or
any officer or authority. It is also being
provided that the pending Letters Patent
Appeal shall continue to be disposed of as
before. The Uttar Pradesh High Court
(Abolition of Letters Patent Appeals)
(Amendment) Act, 1981, was introduced
accordingly. The Statement of Objects and
Reasons of the aforesaid Act were as
follows:-

"Prefatory Note---Statement of
Objects
and
Reasons.---Prior
to
the
enactment of the Uttar Pradesh High Court
(Abolition of Letters Patent Appeals) Act,
1962 a Letters Patent Appeal could (except
in certain cases), be filed before a Division
Bench of a High Court against the
judgment of the Single Judge. In view of
the circumstances obtaining after the
establishment of the Supreme Court the
said Act of 1962 was enacted under which
Letters Patent Appeal against the judgment
of a Single Judge of the Allahabad High
Court given in exercise of his appellate
jurisdiction arising out of the judgment of a
Subordinate Court in civil or other
proceedings was abolished.

2. Amendments were made in the
aforesaid Act in 1972 and 1975 to abolish
the Letters Patent Appeals against the
judgments of a Single Judge of the High
Court in writ petitions arising out of certain
judgments of the Board of Revenue, the
Director of Consolidation, the District
Judge and the civil Judge.
 3. Despite the aforesaid measures,
the number of cases in the High Court,
continued to increase and impediments in
the way of speedy justice could not
altogether be removed. It is, therefore,
considered necessary to make a similar
provision in the U.P. High Court (Abolition
of Letters Patent Appeals) Act, 1962 with a
view to abolishing the Letters Patent
Appeals against the judgment or order of a
Single Judge of the High Court under
Article 226 or Article 227 of the
Constitution in respect of any judgment
order or award of the Subordinate Courts,
Tribunals or Statutory Arbitrators made in
exercise of jurisdiction under any Uttar
Pradesh Act or under any Central Act
relating to any of the matters enumerated in
the State List or Concurrent List of the
Seventh Schedule to the Constitution or in
respect of any order made in exercise of the
appellate or revisional jurisdiction under
any such Act, by the State Government or
any officer or authority. It is also being
provided that the pending Letters Patent
Appeal shall continue to be disposed of as
before.

24. By 1981 Amendment Act,
Section 5 of 1962 Act was substituted by
the following provision:-

"2. Substitution of Section 5 of
U.P. Act 14 of 1962.----For Section 5 of the
Uttar Pradesh High Court (Abolition of
Letters Patent Appeals) Act, 1962, the
following section shall be substituted,
namely:---

"5. Abolition of Letters Patent
Appeals
in
certain
other
cases.---(1)
Notwithstanding anything to the contrary
14 INDIAN LAW REPORTS ALLAHABAD SERIES
contained in Clause 10 of the Letters Patent
of Her Majesty, dated March 17, 1866 read
with Clauses 7 and 17 of the U.P. High
Courts (Amalgamation) Order, 1948, or in
any other law, no appeal arising from an
application or proceeding, instituted or
commenced whether prior or subsequent to
the commencement of the Uttar Pradesh
High Court (Abolition of Letters Patent
Appeals) (Amendment) Act, 1981, shall lie
to the High Court from a judgment or order
of one Judge of the High Court, made in
the exercise of jurisdiction conferred by
Articles 226 or 227 of the Constitution, in
respect of any judgment, order or award---

(a) of a Tribunal, Court of
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, 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.

(2)
Notwithstanding
anything
contained in sub-section (1), all appeal of
the nature referred to in that sub-section
pending before the High Court immediately
before the commencement of the Uttar
Pradesh High Court (Abolition of Letters
Patent Appeals) ( Amendment) Act, 1981,
shall be heard and disposed of as if that
sub-section had not been enacted."

25. Chapter VIII, Rule 5 of the
Rules of the Courts was again amended by
Notification dated 27th July, 1983 to bring
it in accord with Section 5 of the
Amendment Act, 1981. Chapter VIII, Rule
5 now existing in the Rules of the Court is
as follows:---
 "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 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 Constitutions 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."

26.

It
transpires
from
the
legislative history of Letters Patent Appeals
that at present, the special appeal is
governed by U.P. High Court (Abolition of
Letters Patent Appeals) Act, 1962, as
amended from time to time, and Chapter
VIII Rule 5 of the Rules of Court.

27. It is well settled that an appeal
is a creature of statute and it can be
circumscribed by the conditions in the
Grant. A Constitution Bench of the
Supreme Court in South Asia Industries
Pvt.
Ltd.
vs.
S.B.
Sarup
Singh4,
considered the Letters Patent of the Lahore
High Court and held that if the appropriate
legislature has, expressly or by necessary
implication, not taken away the right to
7 All. Ramjit Ram Yadav Vs. State of U.P. & Ors.
15
appeal, the inevitable conclusion is that the
appeal shall lie from the judgment of a
Single Judge. In a later judgment in
Sharda Devi vs. State of Bihar5, the
Supreme Court has reiterated the aforesaid
legal proposition in paragraph 9 of the Law
Report -

 "9. A Letters Patent is the charter
under which the High Court is established.
The power given to a High Court under the
Letters Patent are akin to the constitutional
powers of a High Court. Thus when a
Letters Patent grants to the High Court a
power of appeal, against a judgment of a
single Judge, the right to entertain the
appeal would not get excluded unless the
statutory enactment concerned excludes an
appeal under the Letters Patent."

28. A Full Bench of this Court in
Sheet Gupta vs. State of U.P. (FB)6,
considered the existing legal provisions,
particularly Chapter VIII Rule 5 of the
Rules of the Court, relating to special
appeals and succinctly laid down the class
of cases where special appeal would not lie.
It would be advantageous to extract
paragraph 15 of the Full Bench judgment -

"15. Having given our anxious
consideration to the various plea raised by
the learned counsel for the parties, we find
that from the perusal of Chapter VIII Rule
5 of the Rules a special appeal shall lie
before this Court from the judgment passed
by one Judge of the Court. However, such
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."

Analysis:-

29. One of the class of cases culled
out in para-15(6) in Sheet Gupta6 where
special appeal would not lie is when the
jurisdiction is exercised by Single Judge
16 INDIAN LAW REPORTS ALLAHABAD SERIES
under Article 226 or 227 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."

30. For an appeal to fall under the
exclusion clause noted above, it should be
(i) under any Uttar Pradesh Act or under
any Central Act, (ii) with respect to any of
the matter enumerated in the State List or
the Concurrent List.

31. The orders impugned in the
writ
petition
were
passed
by
the
Officers/Authority in exercise of appellate
and revisional jurisdiction conferred under
Uttar Pradesh Road Transport Corporation
Employees (Other than Officers) Service
Regulations, 1981. The Regulations have
been framed by UPSRTC in exercise of the
power delegated on it by virtue of Section
45 of the Act, which undoubtedly is a
Central Act. Section 45 of the Act is
extracted for convenience of reference: -

"45.
Power
to
make
regulations.-(1) A Corporation may, with
the
previous
sanction
of
the
State
Government,
make
regulations,
not
inconsistent with this Act and the rules
made thereunder, for the administration of
the affairs of the Corporation.

(2) In particular, and without
prejudice to the generality of the foregoing
power, such regulations may provide for all
or any of the following matters, namely:-

(a) the manner in which, and the
purposes for which, persons may be
associated with the Board under section 10;

(b) the time and place of meetings
of a the Board and the procedure to be
followed in regard to transaction of
business at such meetings;

(c) the conditions of appointment
and service and the scales of pay of officers
and other employees of the Corporation
other than the Managing Director, the Chief
Accounts
Officer
and
the
Financial
Adviser, or as the case may be, the Chief
Accounts Officer-cum-Financial Adviser.

(d) the issue of passes to the
employees of the Corporation and other
persons under section 19;

(e) the grant of refund in respect
of unused tickets and concessional passes
under section 19."

32. The first question which
therefore arises is whether the exercise of
power by the Officers/Authority under the
Regulations could be said to be a power
exercised under a Central Act.

33. In Sheet Gupta6, the Full
Bench considered a similar question in
reference to the power exercised by the
Officers/Authority under the Uttar Pradesh
Scheduled
Commodities
Distribution
Order, 2004 framed under Section 3 read
with
Section
5
of
the
Essential
Commodities Act, 1955. The contention
that the appellate power in the said case,
exercised by the Divisional Commissioner,
was under the Distribution Order framed by
the State Government in exercise of its
delegated power under Section 5 of the
Essential Commodities Act, 1955 and not
under the Act itself and therefore, would
not fall within the clutches of the exclusion
7 All. Ramjit Ram Yadav Vs. State of U.P. & Ors.
17
clause was repelled holding that an order
framed under the delegated provision of the
Act is "definitely a power exercised under
the Act" and it is not necessary that the
power should be "given by the Act" itself.
In reaching to the aforesaid conclusion, the
Full Bench relied on the judgment of the
Supreme Court in Dr. Indramani Pyarelal
Gupta and others vs. W.R. Natu and
others7. Further, in the said case, the
Essential Commodities Act, 1955 was
found to have been enacted under Article
246(2) in respect of matters enumerated in
the Concurrent List, and therefore the
special appeal was held to be not
maintainable. The relevant discussion in
this regard as contained in para-17 of the
Law Report is extracted below:-

"The
exercise
of
original
jurisdiction by any tribunal, Court or
statutory arbitrator or exercise of appellate
or
revisional
jurisdiction
by
the
Government or any officer or authority is to
be under any U.P. Act or any Central Act
with respect to the matters enumerated in
the State List or the Concurrent List in the
Seventh Schedule to the Constitution of
India. The powers have to be exercised
under the Act and not given by the Act. As
held by the Apex Court in the case of Dr.
Indramani Pyarlal Gupta (supra) the words
'powers exercised under the Act' would
comprehensively embrace in its power
conferred by any bye laws or delegated
legislation. If the appellate or revisional
powers
has
been
conferred
by
the
Government through an order issued under
the delegated provisions of the Act then it
is definitely a power exercised under the
Act and in that event no special appeal
under Chapter VIII Rule 5 of the Rules
would lie against the judgment and order
passed by the learned single Judge. In the
present
case,
we
find
that
the
Commissioner
had
exercised
powers
conferred
under
Clause
28
of
the
Distribution Order, 2004, which order has
been passed under the provisions of the
Act, therefore, the appellate power has
been exercised under the Act and, thus, no
special appeal would lie."
(emphasis supplied)

34. The enunciation of law by
Apex Court on the aforesaid issue in Dr.
Intramani Pyarelal Gupta7 is extracted to
make the legal position more explicit :-

 "15. A more serious argument
was advanced by learned Counsel based
upon the submission that a power conferred
by a bye-law framed under S.11 or 12 was
not one that was 'conferred "by or under the
Act or as may be prescribed". Learned
Counsel is undoubtedly right in his
submission that a power conferred by a law
is not one conferred "by the Act", for in the
context the expression "conferred by the
Act" would mean "conferred expressly or
necessary implication by the Act itself." It
is also common ground that a bye law
framed under Sections 11 or 12 could not
fall within the phraseology "as may be
prescribed", for the expression "prescribed"
has been defined to mean "by rules under
the Act", i.e, those framed under S.28 and a
bye law is certainly not within that
description.