Allahabad High Court
Harishchand Dubey vs The State Of U.P. And 10 Others on 4 April, 2023
Bench: Chandra Kumar Rai
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 18
Case :- WRIT - B No. - 1199 of 2023
Petitioner :- Harishchand Dubey
Respondent :- The State Of U.P. And 10 Others
Counsel for Petitioner :- Devraj Yadav,Adya Prasad Tewari
Counsel for Respondent :- C.S.C.,R S Dubey,Savita Dubey
Hon'ble Chandra Kumar Rai,J.
Heard Mr. A.P. Tewari, learned counsel for the petitioner and Mr. R.S. Dubey, learned counsel for respondent no. 3 and perused the record.
The instant petition has been filed for mandamus commanding the respondent no. 2, the Deputy Director of Consolidation, Gorakhpur to decide the stay application dated 17.02.2023 filed by the petitioner in pending revision no. 1163 of 2023, Harishchand Dubey Vs. Ghanshyam and others in the proceeding under Section 9A(2), U.P.C.H. Act as well as for direction in the disposal of the stay application before the revisional Court and the orders impugned in the revisional Court may not be implemented.
Learned counsel for the petitioner submitted that title revision filed by petitioners along with stay application is pending before the revisional Court, respondent no. 2. He further submitted that stay application was filed as the order under revision has serious civil consequences, but the revisional Court has not passed order as prayed by way of stay application. Counsel for the petitioner placed reliance upon the judgment of this Court reported in 2007 (102) RD 498, Ali Sher Vs. State of U.P. Through Collector, Bijnor and Others in order to demonstrate that the interim protection be granted during pendency of appeal / revision if the order under appeal and revision has serious civil consequences.
On the other hand, Mr. R.S. Dubey, learned counsel for the respondents submitted that petitioner's objection and appeal have been dismissed by the Consolidation Officer and Settlement Officer Consolidation as such the petitioner is not entitled to any interim protection during pendency of the revision. He further submitted that petitioner's stay application filed along with revision has been considered and at one stage the order dated 10.03.2023 has been passed by the DDC directing the ACO to look into the matter and further ordered that no injury be caused to the tenure holder. It is submitted that petitioner has not annexed the order dated 10.03.2023 along with the writ petition as such petitioner is not entitled to any relief in the matter. He submitted that the contesting respondent has initiated the proceeding under Rule 109 (A) of the U.P.C.H. rules in pursuance of the order passed by Consolidation Officer, but petitioner is only interested to linger on the matter. He further placed reliance upon the judgment of the Apex Court reported in 2023 LiveLaw SC 63, SANJIV KUMAR SINGH versus THE STATE OF BIHAR & ORS., in order to demonstrate that mere filing of the appeal would not operate as a stay. He finally submitted that writ petition filed by the petitioner is liable to be dismissed.
I have considered the arguments advanced by learned counsel for the parties and perused the record.
There is no dispute about the fact that title revision filed by the petitioner along with the stay application is pending before the revisional Court/respondent no. 2.
Since, the revision under Section 48 of the U.P.C.H. Act filed by petitioner arising out of title dispute is pending along with the stay application as such in view of the law aid down by this Court as cited by learned counsel for the petitioner in Ali Sher (supra) which was passed after considering the judgment of Apex Court petitioner is entitled to interim protection till the disposal of revision under Section 48 of U.P.C.H. Act. Paragraph nos. 4 and 5 of the judgment rendered in Ali Sher (supra) is 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 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."
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."
So far as the judgment cited by the counsel for the respondents in Sanjiv Kumar Singh (supra) in which it has been held that mere filing of appeal would not operate as stay, the same will not be applicable in the present matters as in the present matter the dispute is whether petitioner is entitled to interim protection or not during pendency of title revision.
Considering the entire facts and circumstances as well as the ratio of law laid down in Alisher (supra) as the instant petition is finally disposed of directing the respondent no. 2 Deputy Director Consolidation, Gorakhpur to decide the revision no. 1163 of 2023 expeditiously/preferably within the period of two months, and till the disposal of revision by revisional Court, the parties shall maintain status quo with respect to the nature and possession of the plot in question. It is made clear that the matter shall be decided by revisional Court without granting unnecessary adjournments to either of the parties.
Order Date :- 4.4.2023
Anjali
