# Shadab Ahmad v. State of U.P. & Ors

- **Citation:** (2022) 7 ILRA 640
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-06-07
- **Case number:** Special Appeal No.466 of 2022
- **Bench:** Manoj Kumar Gupta, Chandra Kumar Rai
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shadab-ahmad-v-state-of-u-p-ors-48820
- **Pages:** 5

## Headnote

A. Civil Law - Election - Maintainability of
Special Appeal - U.P. Panchayat Raj Act,
1947 - Section 12-C - Special appeals
arising out of writ petition filed against
the order passed by a Election Tribunal
u/s 12-C are barred by Chapter VIII, Rule
5 of the Rules of the Court. (Para 8)

The Sub Divisional Magistrate, while passing
order dated 13.05.2022 has clearly mentioned
that the order is being passed by him, acting as
prescribed authority under the Act. U/s 12-C of
the Act, the election petition lies before such
authority as may be prescribed. It is not the
case of the appellant that Sub Divisional
Magistrate is not the authority prescribed to
deal with a petition u/s 12-C. The contention
that
the
election
petition
was
not
presented in the manner prescribed could
be considered, had the appeal been
maintainable.
As
this
appeal
is
not
maintainable, we cannot arrogate to
ourselves the power to dwell on the issue.
Likewise, provision relating to revision before
District Judge, will not detract from the legal
position that the proceedings originate from an
order of Election Tribunal under U.P. Act. (Para
9)

Special appeal dismissed. (E-4)

Precedent followed:
7 All. Shadab Ahmad Vs. State of U.P. & Ors.
641

## Text

640 INDIAN LAW REPORTS ALLAHABAD SERIES
opinion, the view taken by the learned
Single Judge and the Appellate Tribunal
does not commend to us. In the opinion of
this Court, the law entitles the petitionerappellant to exercise his right that he has
purchased from the judgment-debtor, that is
the right to redeem the mortgaged property
to the same extent and the manner in which
the judgment-debtor could have done.

32. However, while setting aside the
auction sale, the interest of the auction
purchaser also have to be protected,
keeping in view the spirit of Rule 60 of the
Rules framed under the Second Schedule of
the 1961 Act, and also, in order to adjust
equities. This the Court proposes to do by
awarding an appropriate rate and term of
interest to the auction purchaser payable by
the petitioner-appellant.

33. In the result, this appeal succeeds
and is allowed. The impugned order passed
by the learned Single Judge is set aside.
The writ petition stands allowed. The order
dated 19.09.2013 passed by the Appellate
Tribunal is hereby quashed and the order
dated 08.03.2013 passed by the Tribunal
setting aside the auction sale dated
13.10.2009
is
restored
with
the
modification that the auction purchaserrespondent no.4 shall be entitled to refund
of the purchase price deposited by him with
the Recovery Officer from the petitionerappellant together with compound interest
at the rate of 7.5% per annum from the date
it was deposited by the auction purchaser
with the Recovery Officer till deposit in
these terms is made by the petitionerappellant with the Recovery Officer.
----------
(2022)07ILR A640
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.06.2022

BEFORE

THE HON'BLE MANOJ KUMAR GUPTA, J.
THE HON'BLE CHANDRA KUMAR RAI, J.

Special Appeal No.466 of 2022

Shadab Ahmad ...Appellant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Sri S.M. Iqbal Hasan, Sri Syed Badshah
Husain Naqvi, Sri Shailendra (Senior Adv.)

Counsel for the Respondents:
C.S.C., Sri Virendra Singh, Sri Gajendra
Pratap (Senior Adv.)

A. Civil Law - Election - Maintainability of
Special Appeal - U.P. Panchayat Raj Act,
1947 - Section 12-C - Special appeals
arising out of writ petition filed against
the order passed by a Election Tribunal
u/s 12-C are barred by Chapter VIII, Rule
5 of the Rules of the Court. (Para 8)

The Sub Divisional Magistrate, while passing
order dated 13.05.2022 has clearly mentioned
that the order is being passed by him, acting as
prescribed authority under the Act. U/s 12-C of
the Act, the election petition lies before such
authority as may be prescribed. It is not the
case of the appellant that Sub Divisional
Magistrate is not the authority prescribed to
deal with a petition u/s 12-C. The contention
that
the
election
petition
was
not
presented in the manner prescribed could
be considered, had the appeal been
maintainable.
As
this
appeal
is
not
maintainable, we cannot arrogate to
ourselves the power to dwell on the issue.
Likewise, provision relating to revision before
District Judge, will not detract from the legal
position that the proceedings originate from an
order of Election Tribunal under U.P. Act. (Para
9)

Special appeal dismissed. (E-4)

Precedent followed:
7 All. Shadab Ahmad Vs. State of U.P. & Ors.
641
1. Vajara Yojna Seed Farm, Kalyanpur (M/s.) &
ors. Vs Presiding Officer, Labour Court II, U.P.,
Kanpur & anr., 2003 (1) UPLBEC 496 (Para 6)

Present special appeal assails order dated
25.05.2022, passed by learned Single
Judge Hon'ble Saumitra Dayal Singh, J. in
Civil Misc. Writ Petition C No.14609 of
2022.

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

1. This intra-Court appeal is directed
against the order dated 25.05.2022 passed
by a learned Single Judge in a writ petition
filed by the petitioner challenging the order
dated 13.05.2022 passed by the Prescribed
Authority/Sub
Divisional
Magistrate
Baberu in a petition filed against him under
Section 12-C of the U.P. Panchayat Raj
Act, 1947 challenging his election as Gram
Pradhan of Gram Sabha Hardauli.

2. Sri Gajendra Pratap, learned Senior
Advocate assisted by Sri Virendra Singh,
appearing on behalf of respondent no.5
raised a preliminary objection to the
maintainability of the instant special
appeal. It is submitted that the present
special appeal is barred as it is directed
against the order of learned Single Judge
passed under Article 226 in respect of an
order passed by the Election Tribunal
constituted under U.P. Act. It is urged that
in view of specific exclusion made under
Chapter VIII, Rule 5 of the Allahabad High
Court
Rules,
1952,
this
appeal
is
incompetent.

3. On the other hand, Sri Shailendra,
learned Senior Counsel assisted by Sri S.N.
Iqbal appearing for the appellant submitted
that
the
special
appeal
is
perfectly
maintainable, inasmuch as, the election
petition itself was still-born not having
been presented in the manner prescribed;
that the Act itself contemplates filing of
revision before District Judge which shows
that the Sub Divisional Magistrate while
exercising power under Section 12-C of the
U.P. Act does not act as an Election
Tribunal but in administrative capacity; and
in any view, the Election Tribunal does not
have trappings of civil court.

4. The facts necessary for disposal of
the instant appeal are that respondent no.5
presented a petition under Section 12-C of
U.P. Panchayat Raj Act, 1947 (hereinafter
referred as 'the Act') challenging the
election of the appellant on the post of
Gram Pradhan. The appellant filed an
application on 18.08.2021 raising various
issues touching upon the maintainability of
the election petition. On 13.05.2022,
respondent
no.3
i.e.
Prescribed
Authority/U.P. Zila Adhikari, Baberu,
Banda while acting as Election Tribunal
directed for recounting of the ballots.
Aggrieved thereby, the appellant filed writ
petition no.14609 of 2022 before this Court
which was allowed in part and recounting
of only polling booth no.103, ward no.5,
Gram Panchayat-Hardauli was permitted.
Being further aggrieved thereby, the instant
appeal has been filed.

5. The provision relating to intraCourt appeal is governed by Chapter VIII,
Rule 5 of the Allahabad High Court Rules,
1952. It reads 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 bya Court subject to
the superintendence of the Court and not
642 INDIAN LAW REPORTS ALLAHABAD SERIES
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 66[or in
the exercise ofthe 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 Constitution, or (b)
of the Government or any officer or
authority, made or purported to be made in
the exercise or purported exercise of
appellate or revisional jurisdiction under
any such Act of one Judge.

6. The above provision has come up
for interpretation in reference to orders
passed by Election Tribunals under Section
12-C of U.P. Panchayat Raj Act, 1947 in
Vajara Yojna Seed Farm, Kalyanpur
(M/s.) & others vs. Presiding Officer,
Labour Court II, U.P., Kanpur & another,
2003 (1) UPLBEC 496.

7. Paragraphs 59, 60, 61 & 62 of the
said judgment specifically deals with the
issue being raised in the instant appeal. The
Division Bench held that the Election
Tribunal while deciding the election
petition under Section 12-C of the Act has
all the trappings of Court and that a special
appeal under Chapter VIII, Rule 5 of the
Rules of Court would not be maintainable.
The relevant paragraphs from the said
judgment dealing with the above issue are
extracted below:

59. The third category special
appeal being Special Appeal Nos. 1118 of
2002 and 532 of 2002 arise out of writ
petition in which order of Election Tribunal
was challenged. The Election Tribunal
while
deciding
the
Election
Petition
functions as a Tribunal. Statutory rules
have been framed regarding procedure to
be followed while deciding the Election
Petition. Certain provisions of Code of
Civil Procedure as well as provisions of
Evidence Act are attracted while deciding
the Election Petition. The Election Tribunal
decides lis between the parties. Parties are
entitled to lead evidence before the
Election Tribunal. Election Tribunal, has
thus, all trapping of Court and Election
Tribunal is a Tribunal. Special appeal
against the order passed in writ petition
arising out of order of Election Tribunal is
not maintainable. Under Section 12-C of
U.P. Panchayat Raj Act Election Petition is
to be heard and decided in accordance with
the statutory rules, namely, Uttar Pradesh
Zila Panchayat (Settlement of Disputes
Relating to Membership) Rules, 1994. Rule
11 of the aforesaid 1994 Rules are
extracted below :-

"11. Procedure before the Judge.-
(1) Except so far as provided by the Act or
in these Rules, the procedure provided in
Code of Civil Procedure, 1908 in regard to
suits shall in so far as it is not inconsistent
with the Act or any provisions of these
Rules and it can be made applicable, be
followed in the hearing of the petitions :

Provided that:

(a) any two or more petitions to
the membership of the same person may be
heard together;

(b) the Judge shall not be
required to record the evidence in full but
shall make a memorandum of the evidence
7 All. Shadab Ahmad Vs. State of U.P. & Ors.
643
sufficient in his opinion for the purpose of
deciding the case;

(c) the Judge may, at any stage of
the proceedings; require the petitioner to
give further cash security for the payment
of the casts incurred or likely to be
incurred by any respondent;

(d) for the purpose of deciding
any issue, the Judge shall only be found to
order production of or to receive only so
much evidence, oral or documentary as he
considers necessary;

(e) any person aggrieved from the
decision of the Judge may apply for review
to the Judge within 15 days from the date of
decision and the Judge may thereupon
review the decision.

(2) The provisions of the Indian
Evidence Act, 1872 (Act No. 1 of 1872)
shall, subject to the provision of the Act
and these Rules, be deemed to apply in all
respects in the proceedings for the disposal
of the petition."

60. Taking into consideration the
aforesaid Rules and the power which is
being exercised by the Election Tribunal, it
is clear that Election Tribunal functions as
Tribunal and it has all trapping of Court.
In Special Appeal No. 532 of 2002 the
Election Tribunal is Additional District
Judge, Bareilly. Two decisions cited by Sri
V.S. Sinha, Advocate appearing for the
appellant in Special Appeal No. 532 of
2002 need to be considered. The decision
of Prakash Timbers (Summary of Cases)
(supra) was with regard to order passed by
Company Law Board. The aforesaid case
was on its own footing. In the aforesaid
case the Division Bench of this Court had
no occasion to consider as to whether
Election Tribunal is a Tribunal. In these
special appeals since orders were passed
by Election Tribunal, the appeal is barred
by Chapter VIII, Rule 5 of the Rules of the
Court. The Division Bench judgment of this
Court in Pratappur Sugar and' Industries'
case (supra) has clearly held that if writ
petition was filed challenging the order of
Tribunal,
special
appeal
is
not
maintainable. The Division Bench in
Paragraph 15 of the aforesaid judgment
held as under :-

"15. For the reasons discussed
above, the inescapable conclusion is that
an
Additional/Deputy
Labour
Commissioner while exercising jurisdiction
under Sub-section (6) of Clause II of the
Standing Orders Junctions as a Tribunal.
The writ petition had been filed challenging
the order of Deputy Labour Commissioner
and being a Tribunal, the present special
appeal under Chapter VIII, Rule 5 of the
Rules of the Court is not maintainable. The
special appeal is accordingly dismissed."

61. The next case relied by
Counsel for the appellant is State of U.P. v.
Smt. Dayavati Khanna (supra). In the
aforesaid case the argument which was
raised before the Division Bench was to the
effect that special appeal would be
competent only from an order passed in a
writ petition which is required to be heard
by Single Judge but not when an order is
passed by Single Judge in a writ petition
cognizable by Division Bench. The said
argument was considered and it was held
that appeal was maintainable since the
judgment passed was of a Single Judge
dated 29th April, 1993. The aforesaid
judgment does not in any manner help the
Counsel for the appellant. The Division
Bench judgment of this Court reported in
1998 (32) ALR 603, Smt. Rama Devi v.
644 INDIAN LAW REPORTS ALLAHABAD SERIES
Smt. Madhnri Verma and Ors., is fully
applicable in the present case. In the
aforesaid judgment the Division Bench held
special appeal not maintainable in a case,
which arose out of writ petition, filed
against the order of Election Tribunal. In
the aforesaid case Prescribed Authority
exercising power under Section 12-C of
U.P.
Panchayat
Raj
Act
passed
a
recounting order, The Division Bench
upheld the objection or maintainability of
the special appeal. It was laid down in
Paragraph 6 of the judgment:

"6. It is clear from the aforesaid
Rule that no special appeal is maintainable
in the cases where the controversy does not
originate before the High Court. The Rule
admittedly is based on a logic that the
Prescribed Authority or the Revisional
Authority which act as Tribunal/Court
having already appreciated the matter from
judicial angle and in order to get finality
the decision of the Single Judge should be
taken as final and no appeal should further
be maintainable. This Court has taken
similar view in Sita Ram Lal v. D.I.O.S.,
Azamgarh and Ors., wherein the main
object of Chapter VIII, Rule 5 has been
duly discussed."

62. In view of the foregoing
discussions, it is clear that special appeal
arising out of writ petition filed against the
order passed by Election Tribunal are also
barred by Chapter VIII, Rule 5 of the Rules
of the Court. Consequently Special Appeal
Nos. 1118 of 2002 and 532 of 2002 are
liable to be dismissed as not maintainable.

8. It has been clearly held in
paragraph 62 that special appeals arising
out of writ petition filed against the order
passed by a Election Tribunal under
Section 12-C are barred by Chapter VIII,
Rule 5 of the Rules of the Court.

9. The Sub Divisional Magistrate,
while passing order dated 13.05.2022 has
clearly mentioned that the order is being
passed by him, acting as prescribed
authority under the Act. Under Section 12C of the Act, the election petition lies
before such authority as may be prescribed.
It is not the case of the appellant that Sub
Divisional Magistrate is not the authority
prescribed to deal with a petition under
Section 12-C. The contention that the
election petition was not presented in the
manner prescribed could be considered,
had the appeal been maintainable. As this
appeal is not maintainable, we cannot
arrogate to ourselves the power to dwell on
the issue. Likewise, provision relating to
revision before District Judge, will not
detract from the legal position that the
proceedings originate from an order of
Election Tribunal under U.P. Act.

10. We, accordingly, uphold the
preliminary objection and dismiss the
special appeal as not maintainable.
----------
(2022)07ILR A644
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.05.2022

BEFORE

THE HON'BLE MRS. MANJU RANI
CHAUHAN, J.

Writ A No. 563 of 2022

Smt. Pushpa Srivastava ...Appellant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant: