Right to appeal is a statutory right and the courts cannot confer or infer it – Allahabad HC (11/08/2022)
Allahabad High Court
Shakuntala Devi Vs. State Of U.P. And 3 Others
Court No. – 21
Case :- WRIT – C No. – 14321 of 2022
Petitioner :- Shakuntala Devi
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- Gopal Misra
Counsel for Respondent :- C.S.C.,Vijay Kumar Dixit
ACTS: Section 251 of the U.P. Kshettra Panchayat And Zila Panchayat Adhiniyam, 1961
Order Date :- 11.8.2022
BENCH: Hon’ble Manoj Kumar Gupta,J.
Hon’ble Dr. Yogendra Kumar Srivastava,J.
1. Heard counsel for the petitioner, learned Standing Counsel for the State respondents and Sri Vijay Kumar Dixit on behalf of Zila Panchayat, Bijnor (respondent no. 2).
2. The petitioner has called in question an order dated 30.3.2022, passed by District Magistrate, Bijnor (respondent no. 3), in an appeal filed by the petitioner under Section 251 of U.P. Kshettra Panchayat and Zila Panchayat Adhiniyam, 1961, challenging order of Zila Panchayat dated 9.9.2019.
3. The case of the petitioner is that she got a plan sanctioned on 24.4.1995 for construction of a residential building. The petitioner admits that near her house, there is Dak Bungalow, belonging to Zila Panchayat, Bijnore. The petitioner claims right of way to her house through the Dak Bungalow. It is alleged that respondent no. 2 had closed the rasta to her house by constructing a wall. The petitioner being aggrieved by the said action of respondent no. 2, preferred Writ Petition No. 13478 of 2018, which was disposed of with liberty to the petitioner to move a representation before Zila Panchayat, with direction to Zila Panchayat to decide the same within two months.
4. It seems that in terms of the said order, the petitioner filed a representation in which prayer made was for removal of the wall constructed by Zila Panchayat and thus, provide free access to the petitioner to her house from the main road. The representation of the petitioner was decided by Apar Mukhya Adhikari by an order dated 9.9.2019. In the said order, specific finding has been recorded that Nihal Singh (husband of the petitioner), was an employee of Zila Panchayat/Zila Parishad and he retired on 31.10.2017. Even after his retirement, he did not vacate the servant quarter, which was in his possession as an employee of Zila Panchayat/Zila Parishad. He is making false and fake claim regarding rasta through Dak Bungalow to exert pressure on the authorities, so that they may not ask him to vacate the quarter or pay rent for the same. It is specifically recorded in the order that the claim made by the petitioner on basis of an alleged certificate by Adhyaksh or Apar Mukhya Adhikari, Prithvi Singh Chauhan, admitting existence of any common passage, is not acceptable, as at the relevant time, there was no officer by that name. It is a fake document. It is also held that the petitioner already has a passage on the northern side of the wall of Dak Bungalow through which she has access to her house. The representation was thus found to be devoid of merit aRight to appeal, a creature of statute – cannot be conferred or inferred nor can it be read by implicationRight to appeal, a creature of statute – cannot be conferred or inferred nor can it be read by implicationnd was rejected.
5. Being aggrieved by the said order, the petitioner filed an appeal purportedly under Section 251 of U.P. Kshettra Panchayat and Zila Panchayat Adhiniyam, 1961. It seems that while the appeal remained pending, the petitioner approached this Court by way of Writ Petition No. 35772 of 2019 for a direction to the Appellate Authority to decide the appeal. The said writ petition was dismissed by an order dated 7.11.2019, observing that the petitioner had not enclosed along with the writ petition, any evidence relating to submission of the memo of appeal in the office of District Magistrate and consequently, no positive direction could be issued. It was left open to the petitioner to obtain details from the Postal Department regarding service and approach the Appellate Authority with such details and pray for early disposal of the appeal. On 24.12.2019, the appeal was dismissed, observing that the petitioner had not preferred any appeal against the order dated 9.9.2019.
6. The petitioner once again approached this Court by way of Writ Petition No. 33062 of 2021, alleging that there was a typographical error in mentioning the date of presentation of the appeal as 19.7.2019 in the order of this Court. The correct date was 17.9.2019. It was also corrected by this Court. The petitioner also took a plea that she had preferred a recall application, seeking recall of the order of District Magistrate and prayed for decision on merits. The writ petition was disposed of on 20.12.2021 with direction to District Magistrate to pass appropriate orders on the pending recall application, as well as pending appeal, on merits, within a specified time frame.
7. The Appellate Authority has now passed the impugned order dated 30.3.2022, wherein it is noted that the alleged appeal is in fact a representation addressed to Apar Mukhya Adhikari, Zila Panchayat, Bijnor, with copy thereof being forwarded to various authorities, including the District Magistrate. However, the Appellate Authority after noting said fact, has proceeded to consider the grievance on merits and has observed that the petitioner has separate access from the main road and that her claim for a passage through the Dak Bungalow, is wholly without any basis. Accordingly, the claim made by the petitioner for removal of the wall of Dak Bungalow and thereby providing access to her through Dak Bungalow, has been turned down. In the concluding part, it has been observed that as a matter of fact, no appeal has been filed by the petitioner, but the matter is being decided in compliance of the order of this court dated 20.12.2021.
8. Learned counsel for the petitioner submitted that respondent no. 3 has wrongly observed that as a matter of fact, no appeal was preferred by the petitioner against order dated 9.9.2019. It is urged that the petitioner is an illiterate woman and therefore, could not file appeal in proper format. It is submitted that since there was specific direction of this Court to decide the appeal on merits and therefore the observations made in the impugned order with regard to non-filing of any appeal against the order dated 9.9.2019, is incorrect.
9. The provision with regard to appeals from order of Zila Panchayat is contained under Section 251 of the U.P. Kshettra Panchayat And Zila Panchayat Adhiniyam, 1961. The relevant provision is being extracted below:-
“251. Appeals from order of Zila Panchayat. – (1) Any person aggrieved by any order or direction made by a Zila Panchayat or a Kshettra Panchayat, as the case may be, under the powers conferred upon it by Sections 165(1), 171, 184, 191(6), 193, 202, 216, 218, 221 or under a bye-law made under sub-head (a) of Heading D and under Heading E of sub-section (2) of Section 239, may within thirty days from the date of such direction or order, exclusive of the time requisite for obtaining a copy thereof, appeal to such officers as the State Government may appoint, for the purpose of hearing such appeals or any of them or, failing such appointment, to the District Magistrate.
(2) The appellate authority may, if it thinks fit, extend the period allowed by sub-section (1) for appeal.
(3) No appeal shall be dismissed or allowed in part or whole unless reasonable opportunity of showing cause or being heard has been given to the parties.”
10. It is noteworthy that under Section 251, appeal lies against any order or direction made by Zila Panchayat in exercise of powers conferred upon it by Section 165(1), 171, 184, 191(6), 193, 202, 216, 218, 221 or under a bye-law made under sub-head (a) of Heading D and under Heading E of sub-section (2) of Section 239. On specific query made by the Court as to under which of these provisions, order passed by Zila Panchayat dated 9.9.2019 would fall, counsel for the petitioner is not in a position to point out to any of the above sections whereunder the Zila Panchayat had exercised its power in passing order dated 9.9.2019, rejecting the representation of the petitioner.
11. We are of considered opinion that the order dated 9.9.2019, rejecting the prayer of the petitioner to demolish boundary of Dak Bungalow and thereby provide access to the petitioner to her house, would not fall under any of the above sections. Consequently, no appeal would lie against such an order.
12. It has been consistently held that the right to appeal is a creature of statute and unless such right is clearly and expressly provided for under an statute, it does not exist. In order for a litigant to invoke the remedy of an appeal, such right must be expressly conferred by the statute. The Constitution Bench of the Supreme Court in the case of U.P. Awas Evam Vikas Parishad v. Gyan Devi (Dead) By LRS. And Others (AIR 1995 SC 726), has held that right to appeal is a statutory right and the courts cannot confer or infer it. It was further held that what is legislatively not permitted cannot be read by implication, not in respect of right of appeal, as it is a creature of statute and granting such right in the absence of express statutory provision would be legislating and not interpreting.
13. The direction of this Court in the earlier round of litigation to decide the recall application and appeal on merits could not therefore be construed as conferring jurisdiction upon respondent no. 3 to act as appellate authority. Consequently, the direction of this Court has to be construed in the light of the above settled legal position.
14. Accordingly, in our opinion, even if we assume that the representation dated 17.9.2019 was an appeal preferred before respondent no. 2, as is sought to be contended, it was not maintainable. Moreover, the Appellate Authority as well as Apar Mukhya Adhikari, Zila Panchayat, Bijnore, have considered the plea of the petitioner on merits and have held that the petitioner is already having separate passage for ingress and egress to her house from a lane on the northern side of the wall of Dak Bungalow and that she does not have any right of passage through the Dak Bungalow.
15. We find no illegality or perversity in the said finding to warrant interference in exercise of writ jurisdiction.
16. The petition is accordingly dismissed.
(Dr. Y.K. Srivastava, J)
(Manoj Kumar Gupta, J)
Order Date :- 11.8.2022