Allahabad High Court
State Of Up And 2 Others vs Kanhai And 5 Others on 29 May, 2024
Author: Chief Justice
Bench: Chief Justice
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2024:AHC:98697-DB
Chief Justice's Court
Case :- SPECIAL APPEAL No. - 547 of 2024
Appellant :- State Of Up And 2 Others
Respondent :- Kanhai And 5 Others
Counsel for Appellant :- Manish Goyal (A.A.G.), Ashok Kumar Goyal (A.C.S.C.), Anshul Nigam (S.C.)
Counsel for Respondent :- Adya Prasad Tewari
Hon'ble Arun Bhansali,Chief Justice
Hon'ble Vikas Budhwar,J.
1. This appeal is directed against the order dated 25.04.2024, passed in Writ - B No. 1408 of 2024, whereby learned Single Judge has directed the Collector, Gorakhpur to record the name of the respondents as bhoomidhar with transferable rights within a period of four weeks and communicate the order to this Court by the next date fixed in the matter.
2. Submissions have been made that writ petition was filed by the respondents, inter alia, seeking direction to Sub Divisional Officer, Tehsil-Gola, District-Gorakhpur to process and decide the application dated 28.12.2023, moved by the respondents under Section 76(2) of the Uttar Pradesh Revenue Code, 2006 (for short 'the Code'), from Class-2 to Class-1, from bhoomidhar non-transferable rights to bhoomidhar transferable rights pursuant to the letter dated 01.02.2024, issued by the Commissioner and Secretary Board of Revenue, Lucknow by passing reasoned and speaking order as early as possible within the time frame. When the matter came up before the Court on 25.04.2024 and instructions were produced by the respondents, on noticing that the respondents have filed a restoration application on 04.04.2024 in relation to an order dated 29.07.1995, the Court passed the direction as noticed hereinbefore.
3. Learned counsel for the appellant made submissions that the passing of the mandatory order, by way of interim direction, whereby the Collector has been directed to record the respondents as bhoomidhar with transferable rights, is not justified inasmuch as once the application is pending consideration before the SDO, directing the Collector to record the name of the respondents, essentially takes away the jurisdiction of the SDO and/or the Collector to decide the application moved by the respondents. Submissions have also been made that even for passing the mandatory order, no finding has been recorded by the learned Single Judge as to whether the respondents were entitled to be recorded under Section 76(2) of the Code as bhoomidhar with transferable rights and therefore, the order impugned deserves to be set aside.
4. Learned counsel for the respondents raised preliminary objection pertaining to the maintainability of the appeal. Submissions have been made that as the order has been passed by learned Single Judge in relation to the proceedings, which are pending under the State Act, the Special Appeal is not maintainable. Further submissions have been made that looking to the nature of proceedings under Section 76(2) of the Code and the stand taken by the respondents by filing the instructions, the learned Single Judge was justified in passing the order, which does not call for any interference.
5. We have considered the submissions made by learned counsel for the parties and perused the material available on record.
6. Insofar as the maintainability of the appeal is concerned, a bare look at the provision of Chapter VIII Rule 5 of the Allahabad High Court Rules would reveal that the appeal would not be maintainable, in case, the jurisdiction has been exercised conferred by Article 226 or 227 of the Constitution in respect of any judgment, order or award of a Tribunal, Court or Statutory Arbitrator made or purported to be made in exercise or purported exercise of jurisdiction under any Uttar Pradesh Act. Admittedly, in the present case, no judgment, order or award has been passed under the Uttar Pradesh Act. The petition was filed seeking a direction to the SDO to pass the order and therefore, in those circumstances, it cannot be said that the appeal is not maintainable.
7. A bare look at the order passed by learned Single Judge reveals that though the relief claimed in the petition pertains to a direction to the SDO to decide the pending proceedings within a given time frame, learned Single Judge, by way of interim order, has directed the Collector to record the respondents as bhoomidhar with transferable rights. Passing the interim order in mandatory form, whereby the Collector instead of the SDO has been directed to record the respondents under the provisions of section 76(2) of the Code, that also without any determination, which was required to be made by the said Authorities and even the learned Single Judge also did not decide the rights of the respondents to get recorded under Section 76(2) of the Code, the said order cannot be sustained.
8. Learned counsel for the respondents, faced with the above circumstances, prayed that the SDO may be directed to decide the pending application within a time frame.
9. Learned counsel for the appellant-State has no objection to the said prayer, however, it is submitted that the application said to have been filed by the respondents is not available. However, the application annexed with the writ petition would be decided.
10. In view of the above discussion, the special appeal is allowed. The order dated 25.04.2024 passed by learned Single Judge is set aside.
11. The Writ - B No. 1408 of 2024, filed by the respondents is disposed of. The SDO, Tehsil-Gola, District-Gorakhpur is directed to decide the application dated 28.12.2023 filed by the respondents under Section 76(2) of the Code within a period of four weeks from the date of this order. For the said purpose, the writ petition filed by the respondents, a copy whereof is already in possession of the appellants, would be taken as the application under Section 76(2) of the Code.
12. A copy of this order be placed in the record of Writ - B No. 1408 of 2024, which as ordered will be taken as disposed of.
Order Date :- 29.5.2024
Mukesh Pal/Rajesh
(Vikas Budhwar, J) (Arun Bhansali, CJ)
