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1993 Supreme(All) 701
IN THE HIGH COURT OF ALLAHABAD
S.C. MATHUR, R.K. AGRAWAL, JJ.
Nanki Prasad - Appellant
Versus
State Of U.P. and others - Respondent
Special Appeal No. 425 of 1993
Decided on : 15-07-1993
Advocate Appeared:
For the Appellant : G.C. Bhattacharya and M.L. Shukla, adv
An appeal does not lie to the Court against an order passed by a Commissioner in exercise of revisional jurisdiction under the U.P. Panchayat Raj Act, 1947.
Headnote:
APPEAL - MAINTAINABILITY - U.P. PANCHAYAT RAJ ACT, 1947 - SECTION 95(1)(GG) - SECTION 96-A - RULES OF COURT, 1952 - CHAPTER VIII RULE 5 - DELEGATION OF POWER TO SUSPEND PRADHAN - REVISIONAL JURISDICTION OF COMMISSIONER - WHETHER APPEAL LIES TO THE COURT AGAINST THE ORDER OF THE COMMISSIONER - HELD, NO.
Fact of the Case:
The Appellant, elected Pradhan of Gaon Sabha, was placed under suspension by the Sub-Divisional Officer. The Appellant challenged the suspension order before the Commissioner, who dismissed the revision. The Appellant then filed a writ petition before the High Court, which was dismissed. The Appellant filed an appeal against the High Court's order.
Finding of the Court:
The Court held that the appeal was not maintainable under Chapter VIII Rule 5 of the Rules of the Court, 1952, as the revisional jurisdiction exercised by the Commissioner was under the U.P. Panchayat Raj Act, 1947, and therefore fell within the exclusionary clause of the rule.
Issues: Whether the appeal was maintainable under Chapter VIII Rule 5 of the Rules of the Court, 1952.
Ratio Decidendi: The Court held that the revisional jurisdiction exercised by the Commissioner was under the U.P. Panchayat Raj Act, 1947, as the State Government had delegated its power to suspend a Pradhan to the Sub-Divisional Officer subject to revision by the Commissioner. Therefore, the exclusionary clause of Chapter VIII Rule 5, which barred appeals against judgments passed in the exercise of revisional jurisdiction under any Uttar Pradesh Act, applied to the present case.
Final Decision: The Court dismissed the appeal as incompetent.
S.C. Mathur, J.
1. The Appellant was elected Pradhan of Gaon Sabha, Bibiyapur Kayasthan, Pargana and Tahsil Bareilly. By order dated 224d September, 1992, passed by the Sub-Divisional Officer, Sadar, Bareilly, he was placed under suspension. The Appellant challenged the suspension order before the Commissioner, Bareilly Division, Bareilly, through revision. The revision was dismissed on 24th November, 1992. Aggrieved by the orders of the Sub-Divisional Officer and the Commissioner, the Appellant preferred writ petition No. 4711 of 1993 before this Court. A learned Single Judge by his judgment and order dated 16th April, 1993, dismissed the writ petition. The present appeal is directed against that judgment and order.
2. The Stamp Reporter has reported that the appeal, which has been filed under Chapter VIII Rule 5 of the Rules of the Court, 1952, is not maintainable. The learned Counsel for the Appellant contests the report.
3. The relevant portion of Rule 5, Chapter VIII reads as follows:
An appeal shall lie to the Court from a judgment (not being a judgment passed in the exercise of jurisdiction conferred under 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 (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.
4. In the present case, the Divisional Commissioner had exercised revisional jurisdiction. The learned Counsel, however, submits that the revisional jurisdiction was not exercised under any 'Uttar Pradesh Act' but was exercised under a notification issued u/s 96-A of the U.P. Panchayat Raj Act, 1947, for short 'Act'. On this basis he submits that the present appeal is not excepted by the exclusionary clause of Rule 5.
5. The power to suspend a Pradhan pending proceeding against him has been conferred u/s 95(1) (gg) of the Act. This power has been conferred upon the State Government. Section 96-A of the Act empowers the State Government to delegate all or any of its powers under the Act to any officer or authority subordinate to it subject to such conditions and restrictions as it may deem fit to impose. In exercise of this power, the State Government issued notification dated 14th October, 1976, delegating its power to suspend under Clause (gg) to the Sub-Divisional Officer subject to the condition that any order passed by the said officer shall be revisable by the Commissioner of the Division and also by the State Government. It was in the exercise of this power that the order of suspension was passed by the Sub-Divisional Officer and it was also in the exercise of the power conferred upon the Divisional Commissioner that he entertained the revision against the order of suspension passed by the Sub-Divisional Officer. In our opinion, once the delegation was made it became a part of the Act and, therefore, it is not possible to say that the revisional power exercised by the Commissioner was not under the Act. Consequently the exclusionary clause of Rule 5 is applicable to the present case and the appeal is, therefore, barred under the said provision.
6. The learned Counsel for the Appellant submitted that prescription of remedy and forum therefore is an essential legislative act and it cannot be delegated. A similar argument was raised before a Division Bench of this Court in Matloob Ahmad v. Sub-Divisional Officer, Bijnor 1986 UPLBEC 901, but was negatived. In this case, writ petition was filed in this Court against the order of suspension passed by the Sub-Divisional Officer. Treating the remedy of revision prescribed through notification dated 14th October, 1976 as statutory, the Division Bench dismissed the writ petition on the ground of availability of alternative remedy. Th
