AKASH AGRAWAL Vs. STATE OF CHHATTISGARH

JUDGEMENT

(1.) This appeal is filed against the judgment of the learned Single Judge refusing to interfere with the decision rendered by the Sessions Judge in a revision under Section 52B of the Indian Forest Act, 1927; hereinafter referred to as 'Forest Act', as it applies to the State of Chhattisgarh in view of the amendment thereto as per Madhya Pradesh Act of 9 of 1965. The question that arises for decision, at the threshold, is as to whether an appeal to the Division Bench would lie against the decision of the learned Single Judge, having regard to the proviso to Sub-section (1) of Section 2 of the Chhattisgarh High Court (Appeal to Division Bench) Act, 2006; herein after referred to as 'Appeal to DB Act'. That Sub-section, with the proviso reads as follows :

(2.) The learned Counsel for the Appellant, placing reliance on the judgments of the Apex Court in State of U.P. and another v. Johri Mal; 2004 AIR SCW 3888 and Nawab Shaqafath Ali Khan and Ors. v. Nawab Imdad Jah Bahadur and Ors.; 2009 AIR SCW 2289, argued for the position that judicial orders could be subjected to challenge either under Article 226 or 227 of the Constitution and the order issued by the learned Single Judge ought to be considered as one under Article 226 of the Constitution, particularly when reference has been made to that provision in the impugned judgment. He accordingly argued that the impugned order is to be considered as one issued under Article 226 of the Constitution and hence the appeal would lie. The embargo contained the provisions of Sub-section (1) of Section 2 of the Appeal to DB Act, therefore, does not apply, it is argued.

(3.) The learned Advocate General referred to the judgments of the Apex Court in Radhey Shyam and Another v. Chhabi Nath and Others; (2015) 5 SCC 423 and Jogendrasinhji Vijaysinghji v. State of Gujarat and Others; (2015) 9 SCC 1 to argue for the position that the order impugned in this appeal is one against which an appeal would not lie since the power under Article 226 of the Constitution does not extend to include the judicial review power in re judicial orders. He also made reference to the judgment in Ramachandran Nair v. Krishna Pillai; (1991) 2 KLT 162, rendered relying on the decision of the Hon'ble Supreme Court in Umami Keshao Meshram v. Radhikabai; AIR 1986 SC 1272, to point out that a proceeding under Article 227 is not an original proceeding.