Allahabad High Court
Shamshad Khan And Another vs State Of U.P. And 7 Others on 15 July, 2021
Bench: Vivek Kumar Birla
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 42
Case :- WRIT - C No. - 622 of 2021
Petitioner :- Shamshad Khan And Another
Respondent :- State Of U.P. And 7 Others
Counsel for Petitioner :- Brij Bhushan Paul,Anand Prakash Paul
Counsel for Respondent :- C.S.C.,Deepak Kumar Srivastava,Raja Ullah Khan,Sanjeev Singh
Hon'ble Vivek Kumar Birla,J.
Heard Sri A.P. Paul, learned counsel for petitioners and Sri Sanjeev Singh, learned counsel appearing for respondent no. 5 and learned Standing Counsel appearing for respondent nos. 1, 2, 3 and 4.
Supplementary affidavit filed today annexing the certified copy of the order is taken on record.
Present petition has been filed with following prayers:-
"(i) Issue a writ, order or direction in the nature of certiorari quashing the impugned orders dated 9.7.2020 (Annexure-21) and 22.10.2020 (Annexure-23) passed by Respondent No. 2 in Appeal No. D2020126100000728 Inre: Munna Lal Versus Shamshad and Others.
(ii) Issue a writ, order or direction in the nature and mandamus restraining the respondents from interfering in actual physical possession of the petitioners in pursuance of Plot Nos. 273 Ka and 273Kha, situate in Village Mahanandpur, Pargana Badagaon, Tehsil Puwyan, District- Shahjahanpur."
By the order dated 9.7.2020 interim order was passed by the respondent no. 2 staying the operation of the order dated 10.2.2020 passed by the respondent no. 3, Sub- Divisional Officer and by the order dated 22.10.2020 the appeal was finally decided and while allowing the appeal matter was remanded back to the Sub- Divisional Officer. Challenging the orders, submission of learned counsel for petitioners is that neither the interim order dated 9.7.2020 nor the final order dated 22.10.2020 could not have been passed by the respondent no. 2 as the delay was not condoned and the appeal was not competent for passing interim order or to be decided on the merits.
Learned counsel for the petitioners has placed reliance on a judgment of Hon'ble Apex Court in the case of Gagandeep Pratishthan Pvt. Ltd. and Other vs. Mechano and Other 2002 (1) SCC 475 to contend that the maintainability of the appeal was to be decided before passing an order. Submission, therefore, is that impugned orders are liable to be set- aside.
Per contra, Sri Sanjeev Singh, learned counsel appearing for the respondent no. 5 by drawing attention to impugned order dated 22.10.2020 contended that although objection regarding maintainability of appeal and passing of the interim order dated 9.7.2020 were taken before the appellate court, however, this right was waived; objections were not pressed and it was agreed that the appeal be heard and decided on merits; and that the appeal was argued by both the sides on merits. He has further drawn attention of this Court on the findings recorded by the appellate court. Ultimately, he further submitted that in any case the final order is the order of remand and no interference is warranted by this Court.
I have considered the rival submissions and have perused the record.
In Gagandeep Pratishthan (supra), the Hon'ble Apex Court held that the maintainability of the appeal should have been decided first, however, in the present case, I find that such objection, although taken before the appellate court, however, was waived specifically. It is, therefore, clear that the issue of maintainability was considered by the Collector before proceeding further and appeal was heard on merits as the counsel for petitioners did not press the two grounds i.e. appeal being time barred and appeal being premature, before the appellate court. An observation to this effect has been specifically made by the appellate court and both parties have argued on merits.
A perusal of petition also clearly indicates that even in the petition there are no such assertions that the objections regarding non- maintainability of appeal, taken before the appellate court, were, in fact, pressed before the court below and that the observation of the court below in this regard is incorrect.
In such view of the matter, it is not a case where the maintainability of the appeal has not been considered by the Collector before proceeding with the case on merits. The objections were specifically waived by the petitioners. Therefore, I find that the ratio of the judgment of the Hon'ble Apex Court in Gagandeep Pratishthan (supra) is distinguishable on facts of the case. It is a remand order and therefore, I am not inclined to look into the allegations on merits as the same can be suitably decided by the respondent no.3, Sub- Divisional Officer, Tehsil Puwyan, District- Shahjahanpur as the matter is pending before him.
In view of the discussions made hereinabove, I find that the petition lacks merits and the same is accordingly dismissed.
It is further provided that the respondent no. 3, Sub- Divisional Officer, Tehsil Puwyan, District- Shahjahanpur shall pass final order in the matter preferably within a period of three months from the date of production self- attested copy of this order, which may be duly verified from the official website of this Court.
Order Date :- 15.7.2021/Aditya
