C/M Peoples Inter College vs State Of U.P. And 6 Others
2022 Latest Caselaw 17023 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 52
 

 
Case :- WRIT - B No. - 2039 of 2022
 
Petitioner :- C/M Peoples Inter College
 
Respondent :- State Of U.P. And 6 Others
 
Counsel for Petitioner :- Tripathi B.G. Bhai,Pramod Kumar Singh
 
Counsel for Respondent :- C.S.C.,Pankaj Kumar Gupta,Rajesh Kumar Chitragupt
 

 
Hon'ble Chandra Kumar Rai,J.

Order on Amendment Application No.3 of 2022

Heard learned counsel for the parties.

Application is allowed.

Counsel for the petitioner is permitted to make necessary amendment in the writ petition during the course of the day.

Order on Writ Petition

1. Heard Mr. Tripathi B.G. Bhai, counsel for the petitioner, Mr. Neeraj Tripathi, learned Additional Advocate General assisted by learned Standing Counsel and Mr. Pankaj Kumar Gupta & Mr. Rajesh Kumar Chitragupt, Counsel for respondent No.7.

2. The brief facts of the case are that petitioner is a registered Society known as Peoples Industrial & Agricultural Higher Secondary School Society, Dumariyganj, District-Siddharth Nagar and its renewal has been made with effect from 10.11.2019 for five years. Land in dispute was recorded as Johnston Agricultural and Industrial School prior to Zamindari Abolition in the year 1930. After the independence, the land in question has been recorded in the name of Krishi Form Peoples Inter College, Dumariyaganj. During Consolidation operation, no objection has been filed by any one and C.H. Form-5 was issued in the name of Krishi Form Peoples Inter College, Dumariyaganj and after Consolidation operation, the entry remained in the name of Peoples Inter College, C.H. form No.45 was accordingly prepared. The suit under Section 144 of the U.P. Land Revenue Code, 2006 was filed by Executive Officer, Nagar Panchayat, in respect of disputed plot impleading the petitioner as defendant. Trial court vide judgment dated 12.11.2020 decreed the suit without framing issues in the matter. Against the judgment of the trial court appeal was filed by petitioner before the Commissioner. Commissioner admitted the appeal but dismissed the stay application accordingly, petitioner filed writ petition No.4709 of 2021, which was disposed of vide order dated 17.08.2021 directing to maintain status quo with regard the possession of the suit property as directed by the appellate Court in respect of the respective area. Commissioner ultimately dismissed the appeal filed by petitioner vide order dated 30th September, 2021, accordingly, petitioner filed Second Appeal No. 2574 of 2021. The stay application was also filed along with the Second Appeal, but Board of Revenue has not passed any order on the admission as well as on the Stay application in the pending second appeal, accordingly, the instant petition was filed by petitioner in which the following interim order dated 13.09.2022 was passed by this Court:-

"Short counter affidavit filed today is taken on record.

Heard Mr. Tripathi B.G. Bhai, learned counsel for the petitioner, learned Standing Counsel for respondent Nos.1 to 5, Mr. R. K. Chitragupt for respondent No.6 and Mr. Pankaj Kumar Gupta, for respondent No.7.

Learned counsel for the petitioner submitted that petitioner is a registered society land in dispute was recorded as the Johnston Agricultural and Industrial School prior of abolition of Zamindari, subsequently land in dispute has been recorded as Krishi Form Peoples Inter College. He further submitted that no objection was filed during consolidation operation. He next submitted that in suit under Section-144 of U.P. Revenue Code 2006 within one month petitioner's entry has been expunged and first appeal of petitioner was dismissed vide order dated 30.09.2021 against which petitioner has filed the second appeal before the Board of Revenue along with stay application against the judgment and decree of the courts below in November, 2021, but till date neither any order on the admission has been passed nor stay application has been considered. He further submitted that there is interference with the right of the petitioner in respect of the plot in dispute. Hence the interim protection is required in respect of the property in dispute.

On the other hand, learned counsel for the respondent No.6 submitted that second appeal is fixed for 15th September, as such no interference is required. Petitioner can approach the respondent No.2 for the appropriate relief.

Considering the facts and circumstances of the case and without expressing any opinion on merit, it is directed to the Board of Revenue by the next date fixed i.e. 15th September, 2022 shall consider the admission of the appeal as well as consider the application for interim relief filed by the applicant in pending second appeal.

Put up this writ petition as fresh on 16th September, 2022.

Parties are directed to maintain status quo as prevailing today till 16th September, 2022."

3. After passing of the order dated 13.09.2022 Board of Revenue has passed the order dated 15.09.2022 admitting the second appeal after framing substantial question of law, but stay application was rejected hence petitioner filed amendment application with the prayer to set aside the order dated 15.09.2022 upto the extant whereby the Stay application of the petitioner has been rejected. The aforementioned amendment application No.3 of 2022 has been allowed by this Court by order dated 15.11.2022.

4. The parties have exchanged the affidavit in the matter.

5. Counsel for the petitioner submitted that the suit under Section-144 of U.P. Revenue Code, 2006/Section-229-B of U.P.Z.A.&L.R. Act filed by the contesting respondents was decreed without framing issues in the suit as such the judgment and decree passed by the trial court cannot be sustained in the eye of law. He further submitted that the trial court has conducted the entire proceeding within a short span of time i.e. within a period of one month, which also makes the proceeding suspicious and illegal.

6. He further submitted that second appeal filed by the petitioner under Section 208 of U.P. Revenue Code, 2006 was admitted by the Board of Revenue after framing the substantial question of law, but the stay application has been arbitrarily rejected.

7. Counsel for the petitioner placed reliance upon judgment of Apex Court reported in 1982 (3) SCC 484 Mool Chand Yadav and another versus Raja Buland Sugar Co. Ltd. Rampur and others in which it has been held that if order under Appeal/ revision has serious civil consequences then interim protection should be granted during pendency of the appeal/ revision.

8. On the other hand, learned Additional Advocate General as well as counsel appearing for respondent No.7 submitted that writ petition is not maintainable against the impugned order. They further submitted that the second appeal filed by the petitioner has been admitted as such petitioner has remedy to press his second appeal before the Board of Revenue in place of invoking the extraordinarily jurisdiction of this court under Article 226 of the Constitution of India. They further submitted that there is concurrent finding of fact against the petitioner as such no interim protection be given to the petitioner during pendency of the second appeal.

9. I have heard learned counsel for the parties and perused the record.

10. There is no dispute about the fact that petitioner who is an Educational Institution and imparting education to the student. The entry continued in favour of petitioner since long period. There is no dispute about the fact that suit under Section 144 of U.P. Revenue Code, 2006 has been filed by the respondents impleading the petitioner as defendant and the suit has been decided in violation of settled Principle for framing issues and inviting evidence of the parties on the basis of issue framed in the suit. There is also no dispute about the fact that the suit under Section-144 of U.P. Revenue Code, 2006 was filed and decreed within just one month period.

11. It is also material that this Court while deciding the writ petition against the order passed on the stay matter in appeal by Commissioner has granted interim protection in favour of petitioner.

12. Since the judgment and decree passed by the trial court cannot be sustained in the eye of law and petitioner is in possession of the plot in dispute since long as such in view of law laid down by Apex court in Mool Chand Yadav (Supra) the impugned order passed by the Board of Revenue rejecting the stay application cannot be sustained in the eye of law.

13. This Court in a case report in 2007 (102) RD 498 Ali Sher Vs.State of U.P. through Collector Bijnor and others following the judgment of Apex court in Mool Chand Yadav (supra) has held 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. Paragraph Nos. 4 and 5 of the judgment are relevant which are as under:-

"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 served by the Hon'ble Apex Court in the case of Mool Chand Vs. Raza Buland Sugar Industries.

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."

14. This court in the case of Babu Vs. Mahveer reported 2020 (146) RD 186 has held the decision of declaratory suit under Section 229-B without framing issue is illegal.

15. Considering the entire facts and circumstances as well as ratio of law laid down by the Apex Court as well as by this Court, the impugned order dated 15.09.2022 passed by Board of Revenue in Second Appeal no.2574 of 2021 is liable to be set aside and is hereby set aside to the extant the stay application of the petitioner has been rejected. The part of the order by which the second appeal has been admitted after framing the substantial question of law is hereby affirmed. The Board of Revenue is directed to decide the second appeal No.2574 of 2021 on merit after affording opportunity of hearing to both the parties without granting unnecessary adjournment of either of the parties expeditiously preferably within a period of four months from the date of production of certified copy of this Court.

16. Till the disposal of the Second Appeal No.2574 of 2021 the parties shall maintain status quo in respect to the nature and possession of the plot in dispute.

17. Needless to say that any observation made in this order shall not affect the merit of case before the Board of Revenue and Board of Revenue will decide the Second Appeal in accordance with law without being prejudice by any observation made in the body of the judgment.

18. Accordingly, the writ petition stands allowed.

Order Date :- 15.11.2022

PS*