Allahabad High Court
Sahabuddin vs State Of U.P. And 4 Others on 28 February, 2023
Bench: Chandra Kumar Rai
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 7
Case :- WRIT - C No. - 4836 of 2023
Petitioner :- Sahabuddin
Respondent :- State Of U.P. And 4 Others
Counsel for Petitioner :- Pradeep Kumar,Piyush Patel
Counsel for Respondent :- CSC,Sudhir Bharti
Hon'ble Chandra Kumar Rai,J.
Heard Mr. Pradeep Kumar, Counsel for the petitioner, Mr. Mishra, learned Additional Chief Standing Counsel for the State-respondents and Mr. Sudhir Bharti for respondent No.5, Village Panchayat.
The instant writ petition has been filed praying for a mandamus commanding the respondent No.2, Additional District Magistrate (Finance/ Revenue), Maharajganj to decide the stay application filed by petitioner in appeal No. D202305470000126 (Sahabuddin Vs. Gaon Sabha) under Section 67(5) of U.P. Revenue Code, 2006 and till the disposal of the stay application, the effect and operation of the ejectment order dated 18.1.2023 be stayed. It is also prayed that the appeal filed by petitioner be also decided within stipulated period.
Counsel for the petitioner submitted that ejectment order has been passed arbitrarily against the petitioner, as such, petitioner filed an appeal under Section 67(5) of the U.P. Revenue Code, 2006 along with the stay application but no order has been passed. Counsel for the petitioner placed reliance upon the judgement of this Court reported in 2007 (102) RD 498, Ali Sher Vs. State of U.P. in which this Court after following the judgement of Hon'ble Apex Court has held that if order under appeal or revision has serious civil consequences then operation of the impugned order must be suspended during pendency.
On the other hand, Mr. V.S. Mishra, learned Additional Chief Standing Counsel submitted that no interference is required in the matter as the appeal is pending before the Collector and petitioner should avail the remedy before the Collector.
I have considered the arguments advanced by Counsel for the parties and perused the record.
There is no dispute about the fact that petitioner's appeal under Section 67(5) of the U.P. Revenue Code, 2006 along with stay application against the order of ejectment is pending before the respondent No.2.
In Ali Sher (Supra) this Court has held that if order under appeal has serious civil consequences that operation of the impugned order must be suspended during pendency of appeal.
Paragraph Nos.4 & 5 of the judgment is relevant for perusal 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."
Since the appeal filed by petitioner along with the stay application is pending before the respondent, as such, interest of justice requires that petitioner's appeal along with the stay application be decided expeditiously and till then interim protection be granted to the petitioner.
Considering the facts and circumstances, the instant petition be finally disposed of directing the respondent No.2, to decide the petitioner's appeal within period of two months from the date of production of certified copy of this order and till the disposal of the petitioner's appeal, the effect and operation of the impugned ejectment order dated 18.1.2023 shall remain in abeyance.
Order Date :- 28.2.2023
Vandana Y.
