Allahabad High Court
Shiv Kumar & Others vs Addl. Commissioner (Admin.) Devi ... on 21 November, 2013
Bench: Sibghat Ullah Khan
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
(Judgment reserved on 08.11.2013)
(Judgment delivered on 21.11.2013)
Court No. - 21
Case :- MISC. SINGLE No. - 7188 of 2013
Petitioner :- Shiv Kumar & Others
Respondent :- Addl. Commissioner (Admin.) Devi Patan Mandal, Gonda & Ors
Counsel for Petitioner :- Pankaj Gupta
Counsel for Respondent :- C.S.C.,Indrajeet Shukla,Yogendra Nath Yadav
Hon'ble Sibghat Ullah Khan,J.
In this case on 08.11.2013 when judgment was reserved, following order was passed on the order sheet:
"Heard Shri Pankaj Gupta, learned counsel for the petitioner and Shri Indrajit Shukla, learned counsel for respondent no.4.� Shri Shukla states that interest of other private respondents is exactly same as of respondent no.4 as one of them (respondent no.5) is real brother of respondent no.4 and respondent no. 6 and 7 are also his family members.� Shri Shukla admitted that the writ petition referred to in the impugned order had been decided before the impugned order was passed.� Learned counsel for the petitioner stated that after vacation of stay order possession was taken by the contesting respondents, however, learned counsel for the contesting respondents stated that contesting respondents were in possession since 1999.
Judgment Reserved.
List/ put up for delivery of order on 13.11.2013."
Dispute relates to agricultural land comprised in Plot No.802, area 0.69 hectare and plot No.132/2, area 0.43 hectare. Initially the said land was recorded in the revenue record in the name of Ganga. After his death dispute of succession arose. Petitioners claim that firstly they inherited the property and secondly Ganga had also executed an unregistered will in their favour on 07.07.1994. Initially the dispute was litigated in mutation proceedings. Additional Commissioner (Administration), Devi Patan Mandal, Gonda ultimately decided the mutation matter in favour of the contesting respondents No.4 to 7 on 25.01.2008. Revision filed against the same before Board of Revenue, Lucknow was dismissed on 13.10.2011. Review petition was also dismissed. Thereafter, petitioners filed Writ Petition No.144 (M/S) of 2012 in this court. An interim order was passed in the writ petition on 21.02.2012, however during pendency of the writ petition, petitioners also filed regular suit based on title under Section 229-B of U.P.Z.A. & L.R. Act on 15.03.2012. Thereafter, writ petition was dismissed as infructuous on 03.09.2012 in view of filing of the suit. In the suit petitioners filed application for temporary injunction under Section 229-D of U.P.Z.A. & L.R. Act. The trial court/ S.D.O./ Deputy Collector, Tehsil Sadar District Gonda passed status quo order on 11.05.2012 in the suit (Suit No.9/88). However, the status quo order was not extended and a specific order rejecting temporary injunction application was passed on 23.08.2013 by the trial court.
Against order dated 23.08.2013, petitioners filed Revision No.832. Revision was dismissed on 23.09.2013 by Additional Commissioner (Administration), Devi Patan Mandal, Gonda holding that the revision was not maintainable, hence this writ petition.
The Deputy Collector through order dated 23.08.2013 rejected the temporary injunction application on the ground that Writ Petition No.144 (MS) of 2012 (supra) was pending in the High Court. The order passed by the trial court is against the record as Writ Petition had already been dismissed as infructuous. Order passed by the revisional court is also erroneous in law as order finally deciding the temporary injunction application is not an interlocutory order. Against such an order, appeal/ revision is maintainable.
As admittedly contesting respondents are now in possession, it is directed that until decision of the suit petitioners shall not interfere in their possession. It is further directed that contesting respondents shall deposit Rs.20,000/- per year before the Deputy Collector during the pendency of the suit by the end of each year starting from 2013. If the last day(s) of the year is/ are holiday(s) then the deposit must be made before that date(s). The amount shall be deposited in some good interest bearing amount for one year renewable after every year for the same period along with accrued interest and new deposit. Order regarding disbursement of the amount shall be passed at the time of the final decision of the suit. However, both the parties are restrained from alienating the property in dispute till the disposal of the suit.
However, before parting it is necessary to note a disturbing feature of the case. In para-12 of the writ petition, it has been mentioned that interim order was cancelled/ refused to be extended by the trial court on the recommendation/ endorsement of an ex-member of parliament. In that regard, reference has been made to Annexure-10 to the writ petition. It was highly improper for the Ex-Member of Parliament, Sri Kirti Vardhan Singh to make endorsement of favourable recommendation on the application of the petitioner. Greater fault was committed by the Deputy Collector to take that application on record of the case, which was pending before him. It was clearly an attempt to influence judicial proceedings on the part of the Ex-Member of Parliament. The Deputy Collector, who passed the order abused his position and power by passing a judicial order on the recommendation of an Ex-Member of Parliament. Court is of the considered opinion that Executive Officers like S.D.Os. are not qualified to hear judicial matters under U.P.Z.A. & L.R. Act. It is directed that in future Sri J.P. Singh, who was S.D.O./ Deputy D.M. Sadar, Gonda on 23.08.2013 shall not hear any matter under U.P.Z.A. & L.R. Act and an adverse entry must be awarded to him to the effect that he passed the order in the case in question on extraneous consideration.
On the basis of the above direction, State Government may initiate such further proceedings against the Deputy Collector concerned as it it considers necessary.
Writ Petition is accordingly disposed of.
Office is directed to supply a copy of this order free of cost to Sri Vinay Bhushan, learned Additional C.S.C. for sending the same to the authorities concerned.
Order Date :- 21.11.2013
NLY
