Ritu Raj Awasthi, J.
Since the common question of law and facts are involved in these special appeals, the same have been heard together and are being disposed of by a common order.
A preliminary objection has been raised by Mr. D.K. Upadhyay, learned Chief Standing Counsel against the maintainability of the special appeals under Chapter VIII, Rule 5 of the Allahabad High Court Rules.
Submission is that the appellants had approached under Article 226 of the Constitution before the learned Single Judge against the orders passed by the prescribed authority under the Indian Forest Act, 1927 and also against the order passed by the appellate authority under the said Act. The learned Single Judge thus has exercised his jurisdiction in a matter where the appellate order as well as the order passed by the prescribed authority was under challenge. That being so, the special appeals would not lie.
Mr. Akhilesh Kalra, learned counsel appearing for the appellants in response submits that since the orders passed by the prescribed authority as well as the appellate authority are totally without jurisdiction and based on absolutely non existent facts, therefore, the order passed by the learned Single Judge is amenable to the special appeal. The order is based on appreciation of the orders which are totally without jurisdiction.
Chapter VIII, Rule 5 of the Allahabad High Court Rules is as under:
"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 the 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."
In the case of Sheet Gupta Vs. State of U.P. & Ors reported in [(2010) 1 UPLBEC 1], the Full Bench has considered the maintainability of the special appeal under the aforesaid Rules, wherein the Full Bench of this Court considered the question whether a special appeal would lie against the order passed by the learned Single Judge of the High Court in writ petition in the matter where the order passed under the control orders under the Essential Commodities Act were under challenge. Considering various submissions, the Full Bench in paragraph 13 has observed as under:
"13. Having given our anxious consideration to the various plea raised by the learned counsel for the parties, we find that from the perusal of the 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 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 criminal 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 Scheduled to the Constitution of India;
6.The order made by one Judge in 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."
The instant is the case where forest lands fall under Entry 17A and 17B of the Concurrent List and not under the Union List. The prescribed authority, therefore, acting as a tribunal under the Act and thereafter the statutory appellate authority passed the orders which were challenged before the learned Single Judge in writ petition. The special appeal thus would not lie against the judgment & order passed by the learned Single Judge.
All the above special appeals not being maintainable are hereby dismissed.
