Chamela Devi vs State Of U.P. And 3 Others
2023 Latest Caselaw 18438 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:146005
 
Court No. - 51
 

 
Case :- WRIT - C No. - 8986 of 2023
 

 
Petitioner :- Chamela Devi
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- R.C. Maurya
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Chandra Kumar Rai,J.

1.Heard Counsel for the petitioner and learned Standing Counsel for State-respondents.

2.The instant writ petition has been filed for the following relief:

"(i). Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 21.02.2023 (Annexure No.8) passed by Commissioner/Upper Commissioner (Administrative) Varnasi Division, Varanasi/ Respondent No. 2 in Case No.1034 of 2022 (Computerized Case No.C202214000001034) (Chamela Devi and others Vs. Mahendra Singh Patel and others) under Section 207 of U.P. Revenue Code, 2006.

(ii) Issue a writ, order or direction, directing the respondent No.2/ Upper Commissioner (Admin.) Varanasi to finally decide the pending Appeal and till disposal of the above mentioned pending Appeal status quo may be maintained over the land in question."

3. The brief facts of the case are the petitioner belongs to Scheduled Caste category and the name of the petitioner's husband was recorded in the revenue record as Bhumidhar with non transferable right over the Araji No.821 area 1.0100 hectare. Petitioner was residing in the plot in dispute since time of her fore fathers. Vide order dated 11.07.2002 Sub Divisional Magistrate ordered to record the name of the petitioner's husband as Bhumidhar with transferable right over Araji No.821 area 1.0100 hectare.

4. Copy of the Khatauni recording the name of petitioner's husband has been annexed as Annexure No.1 to the writ petition. After about 20 years on the complaint of respondent No.4 a case under Section 32/38 of U.P. Revenue Code, 2006 has been registered in respect to Araji No.821 area 1.0100 hectare and Sub Divisional Magistrate without notice or affording opportunity of hearing to the petitioner has passed the order dated 27.11.2021 which been annexed as Annexure No.3 to the writ petition by which the name of the petitioner from Arazi No. 821, area 1.0100 hectare has been expunged. He next submitted that against the order dated 27.11.2021, petitioner filed an appeal under Section 38(4) of U.P. Revenue Code, 2006 along with stay application. Appellate Court vide order dated 05.01.2023 granted interim order in the petitioner's appeal and appeal is still pending but vide order dated 21.2.2023 stay order was vacated, hence this writ petition.

5. This court vide order dated 21.03.2023 directed the parties to maintain status quo till the next date fixed in the matter. Interim order was extended vide order dated 29.03.2023.

6. Counsel for the petitioner submitted that petitioner's entry has been expunged in the arbitrary manner without notice and opportunity of hearing to the petitioner. He further submitted that appeal filed by the petitioner was entertained and interim order was granted by the appellate court, as such vacation of interim order during pendency of the appeal is not proper. He further placed reliance upon judgment reported 2007 (102) RD 498, Ali Sher Vs. State of U.P. Through Collector, Bijnor and Others (Writ B. No.1583 of 2023 ) 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.

7. On the other hand, learned Standing Counsel for the State-respondents submitted that interim order was rightly vacated by the court. He further submitted that in appeal interim order was granted without opportunity of hearing to the contesting respondent as such the interim order has been rightly vacated during pendency of the appeal. He next submitted that since the appeal is still pending as such, petitioner should approach the appellate court for the disposal of the appeal, in accordance with law.

8. I have considered the arguments advanced by the counsel for the parties and perused the record.

9. There is no dispute about the fact that petitioner was recorded tenure holder on the date of initation of proceeding under Section 32/38 of U.P. Revenue Code, 2006 and without any notice/opportunity of hearing to the petitioner, name of the petitioner has been expunged. There is also no dispute about the fact that in appeal filed by the petitioner an interim order has been granted but subsequently interim order has been vacated by the appellate Court only on the ground that opportunity of hearing has not been given to the contesting respondent while granting interim order.

Paragraph Nos.3, 4 and 5 of the Judgment of Ali Sher (Supra) are relevant for perusal which are as under:

"3. It has been allowed by learned Counsel for petitioner that plot situate near Abadi is very fertile and of commercial nature which was earmarked for construction of Primary Health Centre and petitioner would suffer irreparable loss in case primary health centre is allowed to be constructed on the same. It has further been alleged that vacation of interim order will render the appeal filed by petitioner infruc-tuous.

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."

10. The interim order which was granted by the appellate court during pendency of the appeal is as follows:

???? ?????

????????? ??? ??????, ???????

?????? ???????, ????? ???????, ?????? ?????????

??? ???????- 1034/2022

???????????? ??? ???????- C20221400001034

????? ???? ??? ???? ???????? ???? ???? ???

??????? ?????-207,????????- ????? ?????? ?????? ??????-2006

????

????????? ?? ?????? ???????? ????????? ???? ?????? 06-12-22 ??? ??????? ??? ?????? ?????? ?? ??????? ???? ???????? ???????? ??? ???? ???? ??? ??? ????? ?? ?????? ??????? ????????? ??? ??????????? ?????? ???????? ????????? ???? ?????? 06-12-2022 ?? ??????? ?? ??? ?? ??? ???????? ???? ??? ?? ?? ????????? ??????, ???????? ??? ???? ?????? 27-11-2021 ?? ??????? ????? ?? ??? ??, ?????? ?????? ???????????? ?? ???????? ??????? ??????? ????? ???? ?? ??????????? ? ???, ??? ??????? ? ???, ??? ??????? ????? ?? ????????? ???? ??? ???? ?? ???? ???? ???? ?? ?????? ???? ??? ??? ????? ?????? 05-01-2023 ?? ???????? ???????? ????

????????? ?? ??????? ???????? ?? ?? ??????? ??? ?? ?? ??????????? ?????? ???????? ??? ???? ?????? 27-11-2021 ?? ??????? ????? ?? ??? ??, ?????? ??????? ?????? ??????? ????? ?? ??????????? ???? ????????? ???? ??? ???? ?? ??????? ??? ???? ????? ??? ???????? ?? ?????? ??? ??????????? ?????? ????????? ???? ??? ???????? ?????? ?? ???????? ??? ????? ?????? ???? ???? ?? ??????? ??? ???? ?? ?? ?????? ???????? ?? ????????????? ??????? ?? ?????? ????? ??? ????????? ??? ???????? ??????? ??????? ????? ?????? ??? ??? ????????????? ???????? ???? ???????? ?? ??????? ??? ????????? ?? ???? ? ???? ???? ?? ??? ??? ????????? ?? ???????? ????? ?? ??????? ?? ??? ??? ?? ??? ????????? ???????? ?? ??? ??? ????????? ???? ?????? ?? ?????? ?? ?????? ?? ?? ??????????? ?? ???? ??? ???

??? ???????? ??? ??? ??????? ????? ?? ??????? ?? ????????? ???? ???? ?? ???? ?????? ???? ?????? ?? ???? ?????? 16-01-2023/ ?????? ???? ?? ???? ???? ?? ?? ???????? ??????? ????? ?? ???? ?? ?????? ?? ????????? ??? ???? ?? ????? ??? ???? ?????? ?? ???????? ? ???? ????? ???????? ?????? ????????? ?? ???? ?????? ?? ???? ???? ?????? 16-01-23 ?? ??? ??? ?????? ?? ????? ???

( ????? ???? ?????)

??? ?????? (???????)

??????? ????, ????????

05-01-2023

11. Perusal of interim order reveals that reason has been assigned by appellate court while granting the interim order dated 5.1.2023 as such vacation of interim order during pendency of appeal is against the ratio of law laid down in Ali Sher (Supra) as such interest of justice requires the interim granted in appeal be continued till the disposal of appeal.

12. In view of the above, impugned order dated 21.02.2023 passed by Additional Commissioner is liable to be seaside and the same is hereby set aside. The Writ petition is allowed and respondent No.2/Commissioner/ Upper Commissioner (Administration) Varanasi Division, Varanasi is directed to decide the pending appeal No. 1034 of 2022 Computer Case No. C202214000001034 expeditiously preferably within a period of six weeks from the date of production of certified copy of this order after giving opportunity of hearing to the parties concerned and without granting unnecessary adjournments to either of the parties.

13. It is further directed that interim order dated 05.01.2023 passed by the appellate Court by which it was directed that no construction be made and there should be no alteration in respect to the property in dispute, shall continued till disposal of the pending appeal.

Order Date :- 21.7.2023

PS*