107. Special Appeal in Allahabad High Court - when not maintainable

In SPECIAL APPEAL No.1942 of 2008 Sheet Gupta v. State Of U.P. & Others decided on 11/12/2009, the Full Bench of Allahabad High Court resolved the controversy regarding maintainability of Special Appeal (Letters Patent Appeal or Intra-Court Appeal ) against a judgment of single judge of the High Court. The question was referred to Full Bench as there were two contradictory decisions of coordinate two judge benches. The referred question was as under:

"Whether a special appeal under the provisions of Rule 5 of Chapter VIII of the Rules of the Court lies in a case where the judgment has been given by a learned single Judge in a writ petition directed against an order passed in an appeal under paragraph 28 of the U.P. Scheduled Commodities Distribution Order, 2004?"

Laying down general rules regarding maintainability of Special Appeal the Full Bench held that :

“from the perusal of Chapter VIII Rule 5 of the Rules of Allahabad High Court, 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 the 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 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 Schedule to the Constitution of India;
6.the order made by one Judge in the 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."

Answering the referred question the Full Bench held that: “---- the Essential Commodities Act, 1955 is a Central Act referable to Entry 33 of the Concurrent List in the Seventh Schedule to the Constitution of India. ---In the present case, we find that the Commissioner had exercised powers conferred under Clause 28 of the Distribution Order, 2004, which order has been passed under the provisions of the Act, therefore, the appellate power has been exercised under the Act and, thus, no special appeal would lie. It may be mentioned here that right of an appeal is a statutory right and not a vested right and can be hedged by conditions as held by the Apex Court in the cases of Smt. Ganga Bai[1]and Vijay Prakash & Jawahar. [2]"

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[1] Smt. Ganga Bai vs. Vijay Kumar and others, AIR 1974 SC 1126.

[2] Vijay Prakash D. Mehta and Jawahar D. Mehta vs. Collector of Customs (Preventive), Bombay, AIR 1988 SC 2010