The State of Uttar Pradesh, through its Principal Secretary of the Department of Revenue, along with five others, filed a Special Appeal Defective No. 310 of 2024 before the Allahabad High Court (Lucknow Bench). This appeal challenged a judgment dated September 18, 2023, delivered in Writ-A No. 4422 of 2015, where the respondent, Vishwanath Vishwakarma, was the petitioner. The case revolves around the applicability and interpretation of Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952, in the context of rules framed under the proviso to Article 309 of the Constitution of India.
Legal Issues Involved:
The central issue in this appeal was the maintainability of the special appeal under Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952. The provision restricts appeals in cases where the writ court has passed orders in the exercise of appellate jurisdiction under rules framed under statutes, particularly when such rules pertain to the State or Concurrent List under the Seventh Schedule of the Constitution.
A preliminary objection was raised by the respondentโs counsel, Sri Ramesh Kumar Srivastava, challenging the maintainability of the appeal. He cited several judgments, including a Full Bench decision in Sheet Gupta vs. State of U.P. and Supreme Court precedents, arguing that the appeal was not maintainable as the rules involved were framed under the proviso to Article 309 of the Constitution.
The appellant’s counsel, Sri Shailendra Kumar Singh, along with Sri Vivek Shukla, presented a contrary argument. They relied on a Division Bench decision in Triyugi Narayan Shahi vs. State of U.P. (2017), where it was held that a special appeal would lie in cases involving rules made under Article 309.
Court’s Order:
The Bench, comprising Justice Rajan Roy and Justice Om Prakash Shukla, delved into the legislative character of rules framed under Article 309. The court acknowledged the legislative power conferred by Article 309, emphasizing that rules made under the proviso to Article 309 have a legislative character, similar to those framed under statutory provisions.
The court noted that excluding appeals in cases involving rules under Article 309 while allowing them under statutes could create an unreasonable and discriminatory dichotomy. Therefore, it was deemed necessary to interpret Chapter VIII Rule 5 in a manner consistent with the legislative character of Article 309.
However, recognizing the conflicting interpretations from earlier judgments, the court referred the matter to a larger bench to resolve whether special appeals are maintainable under Chapter VIII Rule 5 when appellate orders under rules framed under Article 309 are challenged.
Key Observations:
– High Court observed, “It would be rather unreasonable and discriminatory to say that in a case of judgment and order of a writ court, where an order passed in an appeal under the rules referable to the proviso to Article 309 of the Constitution of India was also in issue, a special appeal can be filed, whereas, such an appeal cannot be filed where the writ court has considered an appellate order passed under rules or Regulation made under a Statute/Act which is also referable to Article 309.”
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Case Details:
– Case Number: Special Appeal Defective No. 310 of 2024
– Parties: State Of U.P. through Principal Secretary, Deptt. Of Revenue U.P. and others vs. Vishwanath Vishwakarma
– Bench: Justice Rajan Roy and Justice Om Prakash Shukla
– Counsel for Appellant: Sri Shailendra Kumar Singh, C.S.C., and Sri Vivek Shukla, Addl. C.S.C.
– Counsel for Respondent: Sri Ramesh Kumar Srivastava and Arvind Kumar Vishwakarma
