# Singh v. State of U.P

- **Citation:** (2008) 3 ILRA 687
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-07-23
- **Bench:** Ashok Bhushan, Arun Tandon
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/singh-v-state-of-u-p-41118
- **Pages:** 3

## Headnote

High Court Rules-Chapter VIII Rule 5Special Appeal-against the judgement of
Single Judge-writ petition against the
order passed by appellate authority
under the provision of Statutory Rule 28
of
U.P.
Scheduled
Commodities
Distribution
Order,2004-held-special
appeal not maintainable-facts in case of
Ram Dhyan Singh are distinguishable.

Held: Para 7

The Division Bench held as quoted above
that the order of the learned Single
Judge was not against an order passed in
exercise
of
appellate
or
revisional
jurisdiction conferred by some Act and in
fact
the
appellate
jurisdiction
was
conferred by a Government Order and
not by an Act. Thus the reason for
holding the Special Appeal maintainable
in the case before the Division Bench
was that the appellate power was
exercised by the Commissioner under
the Government Order dated 03.07.1990
and not under an Act. In the present
case, the appellate power had been
exercised by the Commissioner under
Rule 28 of U.P. Scheduled Commodities
Distribution Order, 2004 which had been
framed under Section 3 of the Essential
Commodities
Act,

## Text

3 All] Hasib Ahmad V. State of U.P. and others
687
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.07.2008

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

Special Appeal No. [556] of 2008

Hasib Ahmad

...Appellant
Versus
State of U.P. and others ...Respondents

Counsel for the Appellant:
Sri. Arvind Srivastava
Sri. Krishna Kumar Singh

Counsel for the Respondents:
S.C.

High Court Rules-Chapter VIII Rule 5Special Appeal-against the judgement of
Single Judge-writ petition against the
order passed by appellate authority
under the provision of Statutory Rule 28
of
U.P.
Scheduled
Commodities
Distribution
Order,2004-held-special
appeal not maintainable-facts in case of
Ram Dhyan Singh are distinguishable.

Held: Para 7

The Division Bench held as quoted above
that the order of the learned Single
Judge was not against an order passed in
exercise
of
appellate
or
revisional
jurisdiction conferred by some Act and in
fact
the
appellate
jurisdiction
was
conferred by a Government Order and
not by an Act. Thus the reason for
holding the Special Appeal maintainable
in the case before the Division Bench
was that the appellate power was
exercised by the Commissioner under
the Government Order dated 03.07.1990
and not under an Act. In the present
case, the appellate power had been
exercised by the Commissioner under
Rule 28 of U.P. Scheduled Commodities
Distribution Order, 2004 which had been
framed under Section 3 of the Essential
Commodities
Act,
1955.
Thus
the
appellate
power
exercised
by
the
Commissioner
in
the
present
case
referable
to
an
appellate
power
conferred under an Act. Thus according
to the ratio of the Division Bench in the
case of Ram Dhyan Singh (Supra), the
present appeal is not maintainable under
chapter VIII Rule 5 of the Rules of the
Court. The Special Appeal having been
filed against a judgment of learned
Single Judge arising out of a writ petition
in which appellate order passed by the
Commissioner was challenged which
appellate order was passed in exercise of
appellate jurisdiction under an Act is not
maintainable under Chapter VIII Rule 5
of the Rules of the Court.
Case law discussed:
2004 (3) AWC

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

1. This is an appeal against the
judgment and order dated 28.02.2008
passed by the learned Single Judge by
which the writ petition filed by the
petitioner challenging the order dated
13.07.07
canceling
the
fair
price
agreement as also the appellate order
dated 28.02.2008 was dismissed.

2.

The
Stamp
Reporter
has
submitted a report that the Appeal is not
maintainable under Chapter VIII Rule 5
of the Rules of the Court.

3. Learned counsel for the appellant
contends that this Appeal is maintainable
under Chapter VIII Rule 5 of the Rules of
the Court. He has placed reliance upon the
Division Bench judgment of this Court
reported in 2004 (3) AWC; Ram Dhyan
Singh v. State of U.P.

4. The writ petition giving rise to
this appeal filed by the appellant was
688 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
against the cancellation order as also
against an appellate order passed under
Rule
28
of
the
U.P.
Scheduled
Commodities Distribution Order, 2004.
The
U.P.
Scheduled
Commodities
Distribution Order, 2004 has been framed
under
Section
3
of
the
Essential
Commodities Act, 1955. The said 2004
order is thus a statutory order, Rule 28
providing for appeal is quoted herein
below:

"28. Appeal (1) All appeals shall lie
before
the
Concerned
Divisional
Commissioner who shall hear and
dispose of the same may by order
delegate his/her powers to the Assistant
Commissioner Food for hearing and
disposing of the appeal."

5. The appeal filed before the
Divisional Commissioner under the said
provision is, therefore, a statutory appeal.
The writ petition having been filed against
an appellate order, Special appeal is
barred under Chapter VIII Rule 5. The
Division Bench judgment in the case of
Ram Dhyan Singh (Supra) relied upon by
the learned counsel for the appellant was
a case where the appeal was not under the
above mentioned 2004 statutory rules.
The appeal in the said case was filed
under the Government Order dated
03.07.1990 and, therefore, the Division
Bench took the view that the Special
Appeal was maintainable as the appeal
was held to be non-statutory.

6. The Division Bench in paragraph
4 of the judgment has given reasons for
holding the Special Appeal maintainable
in that case. Following was observed by
the Division Bench in paragraph 4 which
is quoted below:

"There is an office report that the
Special Appeal is not maintainable in
view of the decisions of this Court in
Vajara Yojna Seed Farm Kalyanpur
(M/s) and others v. Presiding Officer,
Labour Court-II, U.P. Kanpur and
another, 2003 UPLBEC 496 and Sita
Ram Lal v. District Inspector of
Schools, Azamgarh and others, 1994
ACJ 180. These decisions hav referred
to Chapter VIII, Rule 5 of the
Allahabad High Court Rules which
states that an appeal lies against the
judgment of a learned Single Judge
under Article 226 of the Constitution
except when the writ petition was filed
against such judgment or order or
award (a) of a Tribunal, Court of
authority, made or purported to be
made in the exercise or purported
exercise of appellate or revisional
jurisdiction
under
any
such
Act
mentioned in Chapter VIII, Rule 5. In
this case, the writ petition filed before
the learned single Judge was against
the order of the Commissioner who
decided the appeal provided for under
the
Government
Order
dated
03.07.1990.
Thus,
the
impugned
judgment before the learned single
Judge, was not against an order of a
Tribunal
or
Court
or
statutory
arbitrator. It was also not against an
order passed in exercise of appellate or
revisional jurisdiction 'conferred by
some Act'. In fact, the appellate
jurisdiction
was
conferred
by
a
Government Order and not by an Act.
Hence, in our opinion this special
appeal is maintainable."

7. The Division Bench held as
quoted above that the order of the learned
Single Judge was not against an order
passed in exercise of appellate or
3 All] Smt. Leena Katiyar V. State of U.P. and others
689
revisional jurisdiction conferred by some
Act and in fact the appellate jurisdiction
was conferred by a Government Order
and not by an Act. Thus the reason for
holding the Special Appeal maintainable
in the case before the Division Bench was
that the appellate power was exercised by
the Commissioner under the Government
Order dated 03.07.1990 and not under an
Act. In the present case, the appellate
power had been exercised by the
Commissioner under Rule 28 of U.P.
Scheduled
Commodities
Distribution
Order, 2004 which had been framed under
Section 3 of the Essential Commodities
Act, 1955. Thus the appellate power
exercised by the Commissioner in the
present case referable to an appellate
power conferred under an Act. Thus
according to the ratio of the Division
Bench in the case of Ram Dhyan Singh
(Supra), the present appeal is not
maintainable under chapter VIII Rule 5 of
the Rules of the Court. The Special
Appeal having been filed against a
judgment of learned Single Judge arising
out of a writ petition in which appellate
order passed by the Commissioner was
challenged which appellate order was
passed in exercise of appellate jurisdiction
under an Act is not maintainable under
Chapter VIII Rule 5 of the Rules of the
Court.

8. Special Appeal is dismissed as not
maintainable.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.07.2008

BEFORE
THE HON'BLE VINOD PRASAD, J.
THE HON'BLE AJAI KUMAR SINGH, J.

Criminal Misc. Writ Petition No. 18016 of
2007

Smt. Leena Katiyar

...Petitioner
Versus.
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Prem Prakash
Sri A.N. Srivastava
Km. Akanksha Srivastava
Sri Murlidhar

Counsel for the Respondents:
Sri V.P. Srivastava
Sri Lav Srivastava
Sri Jag Narayan

Constitution of India, Article 226-Writ of
Mandamus-seeking
direction
to
the
authorities concerned to submit charge
sheet against individuals-sole dominion
of authorities-interference of Court not
required-informant
can
approach
to
investigation officer writ petition heldmisconceived.

Held: Para 9

Yet another facts which way heavily
against grant of relief sought by the
petitioner in this writ petition is that the
offences are being further investigated.
It is now well settled by a catena of
decisions by this court as well as by the
apex court that courts can not interfere
in
already
progressing
investigation.
Informant petitioner call seek redressal
of
her
grievances
before
the
investigating officer conducting further
investigation but, under Article 226 of
The Constitution, we are not inclined to