Uttarakhand High Court
WPMS/233/2019 on 5 April, 2021
Office Notes, reports,
orders or proceedings
SL.
Date or directions and COURT'S OR JUDGES'S ORDERS
No
Registrar's order with
Signatures
WPMS No. 233 of 2019
Hon'ble Sharad Kumar Sharma, J.
Mr. Tapan Singh, Advocate, for the
petitioner.
Mr. Suyash Pant, Standing Counsel, for
the State.
In a pending Suit, which was preferred
by the petitioner, who is a plaintiff under
Section 229B of the U.P.Z.A. & L.R. Act, on an
application under Section 229D of the U.P.Z.A
& L.R. Act, the Court of Assistant Collector, 1st
Class, Vikas Nagar, by an order dated
05.05.2011, had passed the following order:-
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The power to grant of an interim order
in a proceedings under Section 229B of the
U.P.Z.A & L.R. Act, as per the principles laid
down therein, the provisions of Section 229D of
the U.P.Z.A & L.R. Act are supplemental in
nature, to the provisions contained under Order
39 Rule 1 & 2 of the CPC, and it stipulates that
the authorities concerned, who passes an order
under Section 229B, has had to apply its judicial
mind and then pass an order, under Section
229D of the U.P.Z.A & L.R. Act, and the same
principles under Order 39 Rule 1 & 2 of the
CPC, would be applicable.
The said principles have also been laid
down by the Hon'ble Apex Court in a judgment
reported in ARC 2000 (2) 661, A.
Venkatasubbiah Naidu Vs. S. Challappan and
others, wherein it has been observed that if the
Court passes an interim order without recording
any reasons, or applying its mind, it will amount
to be a failure on the part of the Court to
discharge its duties by passing an order passed
without application of mind.
In the present case, as against the said
order dated 05.05.2011, a revision was preferred
by Smt. Lalita Devi. Before the learned
Revisional Court, the petitioner had argued that
the revision at the behest of Smt. Lalita Devi
would not be maintainable, because Smt. Lalita
Devi was not a party to the proceedings under
Section 229B of the U.P.Z.A & L.R. Act, of
which the petitioner was the plaintiff and hence
the revision at his behest would not be
maintainable.
In response to it, the learned counsel
for the State has drawn attention of this Court to
the findings which had been recorded therein
with regards to conveyance made in relation to
the property in question, as it has been dealt
with in the order itself.
This Court, at this stage is deliberately
refraining itself to address on the merits of the
matter, for the reason being that if the order
impugned dated 05.05.2011 itself, is taken into
consideration, there is no application of mind as
such nor any reason has been assigned to it, due
to which on a challenge being given in a
revision, the learned Revisional Court, has
remitted the matter back to the Court of
Assistant Collector to re-decide the application
of the petitioner for the grant of temporary
injunction afresh.
Looking to the facts and circumstances,
and the nature of the order, which is under
challenge, since its an order of remand, whereby
the application under Section 229D of the
U.P.Z.A & L.R. Act, has been directed to be
decided a fresh in accordance with law and
particularly as per the opinion of this Court, it
has had to be decided in accordance with the
judgement of A. Venkatasubbiah (Supra), the
impugned order of remanding the matter to re-
decide the application under Section 229D of
the Act, no prejudice, as such has been caused
to the petitioner, because all his contentions in
relation to his arguments pertaining to
supporting his application under Section 229D
of the Act, is still left open to be addressed by
him before the Court of Assistant Collector.
Hence, looking to the nature of the
order, this Court is not inclined to exercise its
extraordinary supervisory jurisdiction under
Article 227 of the Constitution of India. The
writ petition is dismissed.
However, the Assistant Collector, 1st
Class, Vikas Nagar is directed to decide the
application under Section 229D of the Act,
afresh exclusively on its own merits, within the
period of one month from the date of
presentation of the certified copy of this order.
(Sharad Kumar Sharma, J.)
05.04.2021
Mahinder/
