Special Appeal Not Maintainable In PILs Seeking Only Reports Or Affidavits | Allahabad High Court Says Such Orders Lack Finality And Don’t Qualify As Judgments
Safiya Malik
The High Court of Allahabad Division Bench of Justice Shekhar B. Saraf and Justice Praveen Kumar Giri dismissed a special appeal challenging an order passed by a single judge in a public interest litigation. The court held that the appeal was not maintainable as the impugned order was procedural in nature, seeking reports from authorities and directing the filing of affidavits, and did not adversely affect any valuable rights of the parties. The bench directed that time to file a counter affidavit in the pending litigation be extended by three weeks.
The matter concerned a challenge to an order passed by a single judge in a public interest litigation filed under Article 226 of the Constitution of India. The order in question recorded that counsel for the petitioner sought withdrawal of the petition, while another counsel representing the petitioner stated that the withdrawal was due to pressure from respondent no. 5, who was alleged to be a land mafia with a criminal history of 16 registered cases in district Fatehpur. The offences cited included cases under the Gunda Act, attempt to murder, mischief, offences against public property, and criminal intimidation.
The single judge noted that the petitioner in a public interest litigation does not have an indefeasible right to withdraw the petition once a public cause is brought to the court's notice. The judge stated that if the petitioner abandons the matter, the court may direct substitution by another public-spirited person or convert the matter into suo motu proceedings. Directions were issued to make the Secretary (Home), Government of Uttar Pradesh, and the Director General of Police parties to the petition.
The single judge also recorded allegations that respondent no. 5 had encroached upon certain plots in village Rakshapalpur, Pargana Ekhla, Tehsil Khaga, District Fatehpur, which were recorded as public utility land and Gaon Sabha land. The Collector, Fatehpur, and the Sub Divisional Officer, Khaga, were directed to submit a report on whether the specified plots were public lands encroached by respondent no. 5. The court further directed respondent no. 5 to file a counter affidavit explaining his criminal history and addressing the allegation of threats.
The special appeal was filed by respondent no. 5 in the writ petition, challenging the single judge's order on the ground that it exceeded jurisdiction when the petitioner sought to withdraw the petition, and that the reliefs granted negatively impacted his rights. The appellant argued that the special appeal was maintainable under Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952.
The division bench examined Chapter VIII Rule 5 of the Rules, which specifies the circumstances in which a special appeal lies against a judgment of a single judge. It noted that the provision excludes appeals against certain orders, including those made under Articles 226 or 227 in specified contexts.
The bench observed: "From the perusal of Chapter VIII Rule 5 of the Rules a special appeal shall lie before this Court from the judgment passed by single Judge of the Court. However, such special appeal will not lie in the following circumstances..." It listed the exclusions provided in the rule.
Referring to the nature of the single judge's order, the bench recorded: "It appears that it is neither an interim nor a final order affecting the interest of any party. The learned single judge has simpliciter sought for reports to determine the truthfulness of the allegations made in the Public Interest Litigation. Under no circumstances, such directions can be termed as judgment and/or an interim order that decides the vital and valuable rights of any of the parties."
The court relied upon the Supreme Court's decision in Shah Babulal Khimji v. Jayaben D. Kania and the Full Bench decision in Ashutosh Shrotiya v. Vice-Chancellor, Dr. B R Ambedkar University to outline the principles governing what constitutes a "judgment" for the purpose of a special appeal. It quoted: "Routine orders which are passed by a Single Judge to facilitate the progress of a case may cause some element of inconvenience or prejudice to a party but do not constitute a 'judgment' because they do not finally determine the rights or obligations of the parties."
The bench further stated: "The object of such a direction is to enable the Single Judge to be apprised of facts relevant and material to arriving at a considered view. Such a direction is in aid of the progression of the case. It does not decide the matter or issue in controversy. The lis continues to remain pending before the Single Judge."
It was noted that the appellant had not raised the issue of maintainability of the writ petition before the single judge. The only ground raised was the petitioner's request for withdrawal, which was rejected. The rejection did not affect any valuable rights of the appellant, who remained at liberty to raise preliminary objections before the single judge.
The bench also recorded that the appeal was filed not by the petitioner seeking withdrawal but by respondent no. 5, against whom allegations had been made. It observed that this raised questions on the maintainability of the special appeal.
The division bench held that the impugned order was procedural and did not constitute a judgment under Chapter VIII Rule 5 of the Allahabad High Court Rules. It dismissed the special appeal as not maintainable.
The court directed: "Accordingly, the present special appeal is dismissed as not maintainable." It further ordered: "As the counter affidavit has not been filed by the appellant in the Public Interest Litigation, the time to file counter affidavit therein is extended by three weeks."
Advocates Representing the Parties:
For the Appellant: Ajay Mishra, Shri Krishna Mishra
For the Respondents: Abhishek Kumar Pandey, Bhagwan Das, C.S.C., Mohammad Zunaid Khan, Ranjana
Case Title: Kesar Singh v. State of U.P. and 4 Others
Neutral Citation: 2025: AHC:129274-DB
Case Number: Special Appeal Defective No. 456 of 2025
Bench: Justice Shekhar B. Saraf, Justice Praveen Kumar Giri
