Allahabad High Court
Sukhdev And 2 Others vs State Of U.P. And 3 Others on 24 August, 2023
Bench: Chandra Kumar Rai
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:171353
Court No. - 51
Case :- WRIT - C No. - 29096 of 2023
Petitioner :- Sukhdev And 2 Others
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- Ashok Kumar Yadav
Counsel for Respondent :- C.S.C.,Sudhir Bharti
Hon'ble Chandra Kumar Rai,J.
1.Heard Mr. Rituvendra Singh Nagvanshi, holding brief of Mr. Ashok Kumar Yadav, Counsel for the petitioners, Mr. Abhishek Shukla, learned Additional Chief Standing Counsel for the State-respondents and Mr. Sudhir Bharti, counsel for respondent No.4/Gaon Sabha.
2. Counsel for the petitioners submitted that proceeding under Section 67 of U.P. Revenue Code, 2006 has been initiated against the petitioners in arbitrary manner and order for ejectment and damages has been passed by Tehsildar on 16.08.2023 in respect to the plot No.308 Kha area 0.044 hectate. He further submitted that petitioners are in possession of another plot in which the residential house belonging to petitioners are situated. He further submitted that without proper demarcation and survey of the plot in dispute, the order for ejectment and damages has been passed by the Tehsildar. He further submitted that petitioners filed an appeal under Section 67 of U.P Revenue Code, 2006 against the order dated 16.08.2023. He further placed the true copy of the ground of appeal filed on 23.08.2023 before respondent No.2/ District Magistrate, Kushinaga, which is taken on record. He submitted that in spite of the fact that limitation of filing of appeal has not been expired, authorities are adamant to demolish the petitioners' construction in arbitrary manner, as such direction be issued for disposal of petitioners' appeal under Section 67 (5) of U.P. Revenue Code, 2006 and till the disposal of the petitioners' appeal interim protection be granted against the order dated 16.08.2023.
3. On the other hand, Mr. Abhishek Shukla, learned Additional Chief Standing Counsel for the State-respondents and Mr. Sudhir Bharti, Counsel for respondent No.4/ Gaon Sabha submitted that petitioners by way of instant petition has prayed for quashing the order dated 16.08.2023, as such petitioners should avail remedy of appeal under Section 67 (5) of U.P. Revenue Code, 2006. He further submitted that no interference is required against the impugned order and writ petition is liable to be dismissed on the ground of alternative remedy.
4. In reply, Counsel for the petitioners submitted that after filing of the instant writ petition, petitioners has filed appeal under Section 67 (5) of U.P. Revenue Code, 2006 on 23.08.2023 which has not been registered by the District Magistrate Kushinagar, District-Kushinagar. He further submitted that limitation for filing appeal under Section 67 (5) of U.P. Revenue Code, 2006 is 30 days, which will expire on 16th September, 2023, as such, act of the authorities to demolish the petitioners' construction is not proper. He further placed reliance upon judgment reported in 2023 (1) ADJ 154, (Rishipal Singh Vs. State of U.P. & Others) in order to demonstrate that during pendency of appeal, the appellate court is empowered to grant interim protection against the order of Tehsildar passed in the proceeding under Section 67 of U.P. Revenue Code, 2006, as such interest of justice requires that instant petition be disposed of and till the disposal of petitioners' appeal under Section 67 (5) of U.P. Revenue Code, 2006, enforcement of the order of Tehsildar dated 16.08.2023 be stayed.
5. I have considered the arguments advanced by learned counsel for the parties and perused the record.
6. There is no dispute about the fact that appeal filed by petitioners under Section 67 (5) of U.P. Revenue Code, 2006 against the order of Tehsildar dated 16.08.2023 is pending before respondent No.2 for adjudication.
7. This Court in Case of Ali Sher Vs. State of U.P. through Collector, Bijnor and others, 2007 (102) R.D. 498 has held that if order under appeal has serious civil consequences then operation of the impugned order must be suspended during pendency of appeal/revision. Paragraph Nos. 3 and 4 of judgment are relevant for perusal which is 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."
8. In view of ratio of law laid down in case of Rishipal (supra) and Ali Sher (supra), instant petition is finally disposed of directing the respondent No.2/District Magistrate, Kushinagar, District-Kushinagar to register the petitioner's appeal dated 23.08.2023 and decide the same in accordance with law expeditiously preferably within a period of six months from the date of production of certified copy of this order.
9. It is further directed that till the disposal of petitioners' appeal under Section 67 (5) of U.P. Revenue Code, 2006 order of Tehsildar dated 16.08.2023 shall remain suspended.
Order Date :- 24.8.2023
PS*
