Allahabad High Court
Ajay Kumar And Another vs Commissioner Azamgarh Division ... on 27 July, 2023
Bench: Chandra Kumar Rai
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:150996
Court No. - 51
Case :- WRIT - C No. - 23528 of 2023
Petitioner :- Ajay Kumar And Another
Respondent :- Commissioner Azamgarh Division And 9 Others
Counsel for Petitioner :- Akhila Nand Pandey,Suresh Chandra Varma
Counsel for Respondent :- C.S.C,Rameshwar Prasad Shukla
Hon'ble Chandra Kumar Rai,J.
1. Heard Mr. Suresh Chandra Varma, learned counsel for the petitioner, Mr. Abhishek Shukla, learned Additional Chief Standing Counsel for the State-respondents and Mr. Rameshwar Prasad Shukla, learned counsel for the respondent- Gaon Sabha.
2. The instant petition has been filed for the following reliefs:
"i. issue a writ, order or direction in the nature of mandamus commanding respondent no.2 not to implement the final decree dated 3.7.2023 passed by Up-Ziladhikari in Case No.T202215060400614 except in accordance with law.
ii. issue a writ, order or direction in the nature of mandamus commanding respondent no.1- Commissioner Azamgarh Division, Azamgarh to stay execution or implementation of judgment and decree dated 3.7.2023 passed by Up-Ziladhikari during pendency of appeal before it challenging the decree dated 3.7.2023.
iii. issue any such direction or order in the nature of mandamus commanding respondent no.1st set to maintain status quo on the spot and restrain the respondents from changing the nature of land, possession or creating a third party right during pendency of appeal no.C202315000000896 (Ajay Kumar and Others vs. Up-Ziladhikari, Lalganj and others), pending before Commissioner Azamgarh Division, Azamgarh.
iv. issue a writ, order or direction which this Hon'ble Court may deem fit and proper under the circumstances of the case.
v. Award the cost of the petition to the petitioner."
3. Learned counsel for the petitioners submitted that against the order passed in the partition suit, an appeal under Section 207 of U.P. Revenue Code, 2006 filed by the petitioner along with stay application is pending before respondent no.1. He further submitted that interim relief is required in the matter as under the order impugned in the appeal, the right of the petitioner has been affected on the basis of khurra. He next submitted that in view of law laid down by Apex Court in Mool Chand Yadav Vs. Raza Buland Sugar Company Limited, Rampur reported in 1982 3 SCC 484 as well as law laid down by this Court in Ali Sher Vs. State of U.P. Through Collector, Bijnor and Others reported in 2007 (102) RD 498.
4. On the other hand, Mr. Abhishek Shukla, learned Additional Chief Standing Counsel for the State-respondents submitted that the petitioners' appeal along with stay application is pending before respondent no.1, as such, petitioners should approach the appellate Court where the petitioners' appeal and stay application is pending. He further submitted that no interference is required in the matter.
5. I have considered the argument advanced by learned counsel for the parties and perused the record.
6. There is no dispute about the fact that the appeal filed by the petitioners, under Section 207 of U.P. Revenue Code, 2006 along with stay application against the order passed in the partition is pending. There is also no dispute about the fact that no order has been passed by the appellate Court rejecting the stay application only the date has been fixed in the matter i.e. 30.8.2023 by the appellate Court.
7. This Court in Ali Sher (supra) has held that the interim protection be granted during pendency of appeal / revision if the order under appeal and revision has serious civil consequences.
Paragraph Nos.4 & 5 of the judgment is relevant which is as follows:
"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. Without expressing any opinion on merits of the case, considering the facts mentioned in the writ petition as well as argued by learned counsel for the petitioner as well as ratio of law laid down in Ali Sher (supra) & Mool Chand Yadav (supra), the instant petition is finally disposed of directing respondent no.1 i.e. Commissioner, Azamgarh Division, Azamgarh to decide the petitioners' stay application in pending appeal within period of six weeks from the date of production of certified copy of this order before him. After passing the order on the stay application, the appellate Court shall decide the petitioners' appeal on merit after giving an opportunity of hearing to the parties, within period of four months from the date of passing of the order on the stay application.
9. It is further directed that till the disposal of stay application, the parties shall maintain status quo with respect to nature and possession of the plot in dispute.
10. Accordingly, the writ petition is finally disposed of.
Order Date :- 27.7.2023
Rameez
