Allahabad High Court
Phul Chand vs State Of U.P. And 10 Others on 14 December, 2022
Bench: Chandra Kumar Rai
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. 52
WRIT - B No. - 228 of 2022
Petitioners :- Phul Chand
Respondents :- State of U.P. and 10 Others
Counsel for Petitioners:- Shailendra Singh, Rajesh Kumar Nishad
Counsel for Respondent :- C.S.C., Achal Singh, Chandra Prakash Kushwaha
Hon'ble Chandra Kumar Rai,J.
1. Heard Sri Rajesh Kumar Nishad, learned counsel for the petitioner, Sri Chandra Prakash Kushwaha, learned counsel for respondent nos. 5 & 6, learned standing counsel for respondent nos. 1 to 3 and Sri Achal Singh, learned counsel for respondent - gaon sabha.
2. Brief facts of the case are that suit under Section 144 of U.P. Revenue Code, 2006 was filed by respondent nos. 5, 6 and 7 impleading petitioner's father (Jagdev) as defendant along with others. The suit was dismissed by Trial Court vide judgment and decree dated 31.8.2020. Against the judgment and decree dated 31.8.2020, respondent nos. 5, 6 and 7 filed appeal under Section 207 of U.P. Revenue Code, 2006 before the Commissioner which was registered as Appeal No. 00424 of 2020 (Computerised Case No.- 202007000000424), the same was heard by respondent no.3 (Additional Commissioner) and order to maintain status quo by both parties was passed till the next date fixed. Respondent nos. 5, 6 and 7 again moved an application in appeal with the prayer that defendants are digging the disputed agricultural plots, as such, effective order of status quo be passed, accordingly, respondent no.3 passed another interim order dated 29.10.2021, directing both the parties to maintain status quo on the spot. Petitioner challenged the order dated 29.10.2021 in Revision under Section 210 of the U.P. Revenue Code, 2006 before respondent no.2 (Board of Revenue) which was dismissed vide order dated 24.12.2021 hence this writ petition.
3. This Court while entertaining the writ petition passed the following interim order dated 8.3.2022:
"Heard learned counsel for the parties.
In a declaratory suit instituted under Section 144 of U.P. Revenue Code, 2006 and order of status quo with regard to land in dispute was passed on 23.09.2021. Thereafter the aforesaid order was challenged in appeal before the Additional Commissioner (First) Chitrakoot Dham and the appellate court recorded the finding that the petitioner has violated the injunction order dated 23.09.2021 by digging the land and directed him to maintain status quo till the next date by order dated 29.10.2021. Against the aforesaid order petitioner filed a Revision No.2539 of 2021 before the Board of Revenue, which has been rejected on the ground of maintainability.
It has been stated by the learned counsel for the petitioner that appellate court's order dated 29.10.2021 was not interlocutory in nature and revision shall lie against the same. Aggrieved by the same petitioner has approached this Court stating that the petitioner is cultivating the land in dispute by planting crops and he is not digging the land.
Supplementary affidavit has been filed in this regard today in court, the same is taken on record.
Learned Standing Counsel has accepted notice respondent nos.1 to 3. Sri Achal Singh, Advocate, has notice on behalf of Gaon Sabha.
Issue notice to respondent nos.5 to 11.
List this petition on 13th May, 2022.
Order on Stay Application.
Till the next date of listing, the effect and operation of the orders dated 29.10.2021 and 24.12.2021 passed by the Additional Commissioner, Chitrakoot Dham, Banda and The Board of Revenue, Prayagraj shall remain stayed. It is also directed that the petitioner shall not dig the plot in dispute and remove soil. The plot shall be used for agricultural purpose only."
4. In pursuance of the order dated 8.3.2022 respondent nos. 5, 6 and 7 have put in appearance through counsel although no counter affidavit has been filed by respondent nos. 5, 6 and 7. Counsel for respondent nos. 5, 6 and 7 submitted that writ petition be heard and disposed of as the same is directed against an interlocutory order passed in pending appeal before Additional Commissioner.
5. Counsel for the petitioner submitted that interim order passed in pending appeal is causing irreparable injury to the interest of petitioner in cultivating his agricultural plot, as such, interim order passed in appeal by respondent no.3 be vacated and appeal pending before respondent no.3 be decided in accordance with law expeditiously.
6. On the other hand, counsel for the respondent no. 5, 6 and 7 submitted that appeal under Section 207 of U.P. Revenue Code, 2006 filed by respondent nos. 5, 6 and 7 arising out of suit for declaration under section 144 of U.P. Revenue Code, 2006 is pending, as such, the interim order to maintain status quo has been passed in the interest of justice against which no interference is required. He placed reliance upon judgment of this court reported in 2007 (102) R.D. 498 Ali Sher versus State of U.P. and others in which it has been held that if the order under appeal or revision has serious civil consequences then interim protection be granted during pendency of the Appeal/Revision.
7. I have considered the submission advanced by learned counsel for the parties and perused the record.
8. There in no dispute about the fact that Appeal under Section 207 U.P. Revenue Code, 2006 filed by respondent nos. 5, 6 and 7 before respondent no.3 is pending in which interim order to maintain status quo has been passed from date to date. There is also no dispute that Appeal arises out of suit for declaration of right under section-144 of U.P. Revenue Code, 2006.
9. The ratio of law laid down in paragraph nos. 4 and 5 of the judgment in Ali Sher (supra) after following the judgment of Apex Court reported in 1982 (3) SCC 484 Mool Chand versus Raza Buland Sugar Industries will be relevant which is as follows:
4.It is well settled that once an appeal or revision is entertained by a higher Court against an order having civil consequences stay normally should be granted to avoid swinging pendulum unless the Court for the reasons to be recorded finds that there is no case for grant of stay as observed by the Hon'ble Apex Court in the case of Mool Chand v. Raza Buland Sugar Industries.[(1982) 3 SCC 484.]
5.Considering the facts and circumstances, impugned order dated 16.11.2006 is hereby quashed. Writ petition stands allowed. Appellate Court is directed to disposal of the appeal of petitioner in accordance with law as expeditiously as possible preferably within a period of two months from the date of production of certified copy of this order before him and till the disposal of appeal as directed above, parties shall maintain status quo with regard to nature and possession over the land in dispute.
10. In the present case the parties are disputing the possession of either side and the disputed plots are agricultural plots, as such, interest of justice require that status quo with respect to nature and possession of disputed plots be maintained.
11. Considering the entire facts and circumstances of the case as well as ratio of law laid down in Mool Chand (Supra) and Ali Sher (Supra), the writ petition is finally disposed of, directing respondent no.3 to decide the pending appeal, expeditiously, preferably within a period of 4 months, from the date of production of the certified copy of this order and the parties shall maintain status quo with respect to nature and possession of the property in dispute till the disposal of the appeal by the Additional Commissioner. It is also directed that parties shall not change the nature of plot in dispute which is agricultural in nature.
Order Date :- 14.12.2022
C.Prakash
(Chandra Kumar Rai, J.)
