Court No. - 21
Case :- WRIT - B No. - 1108 of 2021 Petitioner :- Amresh Chand And 2 Others Respondent :- Shyam Bihari And 5 Others Counsel for Petitioner :- Chandra Shekher Singh Counsel for Respondent :- Pradeep Singh
Hon'ble Dinesh Pathak,J.
Heard Sri V.K. Singh, learned Senior Counsel assisted by Sri Chandra Shekhar Singh, learned counsel for the petitioners, Sri Pradeep Singh, learned counsel for the respondent no. 2 (Gaon Sabha) and learned Standing Counsel representing respondents no.3.
In view of the peculiar facts and circumstances of the case and the order proposed to be passed hereinunder, this Court is proceeding to finally decide this matter at the admission stage, without putting notice to respondent nos.1, 4, 5 and 6 and without calling for their respective affidavits, i.e. counter affidavit and rejoinder affidavit, with a liberty to the contesting respondents to move a recall application, in case, any fact is found incorrect.
The present petition has been filed by the petitioners invoking the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India for quashing the order dated 08.04.2021, partly, passed by Board of Revenue (respondent no. 3), so far it relates to the interim order passed ex parte against the present petitioners.
Question involved in the present writ petition is limited to the extent of unreasoned ex parte interim order passed by the respondent no.3 at a belated stage, after more than fifteen (15) years, in a revision petition arising out of mutation proceeding under Section 34 of the Land Revenue Act, 1901 (in brevity 'L.R.Act').
Grievance of the petitioners is that Board of Revenue (respondent No.3) has belatedly passed an ex parte interim order, against the petitioners, after more than fifteen (15) years of culmination of mutation proceeding under section 34 of L.R. Act by order dated 24.08.2005 passed by Additional Commissioner, that too, without affording any opportunity of hearing and without assigning any cogent reasons.
Submissions advanced by learned Senior Counsel appearing for the petitioners is that by concealing the material facts on record, respondent no. 1 has secured an ex parte interim order dated 08.04.2021. Board of Revenue (respondent no.3) has passed order dated 08.04.2021 in a cursory manner, without considering the grounds for passing the interim order and without assigning any cogent reason to pass such order for maintaining status quo on the spot. It is further submitted that the aforesaid interim order has been granted after more than fifteen years of order dated 24.08.2005 passed by the Additional Commissioner, that too, without considering the case of the parties and without giving proper opportunity of hearing to the present petitioners. In passing the order dated 08.04.2021, Board of Revenue itself was not satisfied with respect to the merits of the revision, therefore, it has called for the record of the court below before admitting the revision but, simultaneously, without applying mind, it has passed the interim order, as well, for maintaining status quo on the spot. It is further submitted that in pursuance of order dated 24.08.2005, both the parties had already entered into their respective shares and there was no dispute left open for any party.
Learned Senior Counsel has emphasized the malice intention of the respondent no. 1 on the ground that out of three brothers, he is the only person who is harassing the present petitioners for some ulterior motive known to him best, particularly on the fact that retail outlet of petroleum products was proposed to be established over Plot No. 51-A and he is keeping vulture eyes on the aforesaid portion of plot for his personal gain.
Perused the record and considered the submissions made by the learned counsel for the petitioners.
Factual matrix, as shown in the writ petition, is that one Amrawati was the recorded tenure holder over the property in question and she has executed a registered sale deed dated 24.01.2005 in favour of the present petitioners with respect to her entire share. On the basis of the aforesaid registered sale deed, present petitioners have moved mutation application under Section 34 of the L.R. Act. Ultimately, the matter was picked up in revision before Commissioner where, present petitioners and respondent nos.1, 5 and 6 had entered into compromise and settled their dispute amicably on the basis of compromise dated 10.08.2005, verified on 16.08.2005, (Annexure-2) inked between them and, accordingly, Additional Commissioner has passed order dated 24.8.2005 (Annexure-3). Subsequently, in pursuance of order dated 24.8.2005 passed by the Additional Commissioner, name of both the parties were recorded in the Revenue Record according to the terms and conditions of the compromise. It has also emerged that in the meantime respondent no. 5 has filed suit for partition under Section 116 of the U.P. Revenue Code, 2006 against his brothers namely, Shyam Bihari and Awadh Bihari. In the aforesaid partition suit, preliminary decree was passed on 18.01.2021 (Annexure-11).
It appears that at a belated stage, respondent no. 1, Shyam Bihari, alone, has moved highly belated restoration application dated 07.09.2020 (Annexure-6) against the order dated 24.08.2005. Learned Additional Commissioner has considered the aforesaid restoration application in detail and rejected the same by its order dated 03.03.2021 (Annexure-7).
Feeling aggrieved, respondent no.1 has preferred revision before Board of Revenue (respondent no. 3). By impugned order dated 08.04.2021, Board of Revenue has called for the record of the lower court to consider the revision for admission but simultaneously he has also granted interim order by making one line observation to the effect that “Agami Niyat Tithi Tak Vivadit Bhoomi Par Yathsthiti Kayam Rahegi”. The present petitioner is aggrieved with the aforesaid observation, made by the Board of Revenue (respondent no. 3), qua maintaining status quo on the spot till the next date.
It emerged on record that both the parties have inked their compromise before the Additional Commissioner on 10.08.2005 and the same was verified on 16.08.2005, which was made basis in order dated 24.08.2005 passed by Additional Commissioner, culminating the lis between the parties qua mutation proceedings. At belated stage, respondent no. 1 (brother of respondent nos.5 and 6), who was party to the compromise along with his brothers, and has been identified by their respective counsel, has filed restoration application with a plea of alibi that during the relevant period he was in army service posted in the State of Assam. The plea of alibi taken by the respondent no. 1, with respect to his presence in army service during the relevant period till filing of restoration application, was unfounded and negated by the Additional Commissioner with an observation that he has not filed any documentary evidence in support of his plea.
In a revision filed by respondent no.1, against the rejection order of restoration application, Board of Revenue, vide order dated 08.04.2021, has shown his inability to admit the case without going through the record of the Court below and without hearing the respondents (in revision). Consequently, he has passed the order calling for the record of the court below for perusal before admitting the revision petition. Notices were ordered to be issued to the respondents, simultaneously, one line observation has also been made by the Board of Revenue, granting interim order for maintaining status quo on the spot.
It appears that aforesaid interim order has been passed by respondent no.3 in a routine manner without considering consequential effect of the chronology of the matter in hand, which took place between 24.08.2005 to 08.04.2021 and finding given by Additional Commissioner. During this period, both the parties of the compromise were recorded in the Revenue Record according to their respective shares and came into possession over there. In the meantime, preliminary decree dated 18.01.2021 was also passed in partition suit which was litigated between the contesting respondents namely respondent no. 1, respondent no. 5 and respondent no. 6, who are the real brothers. Being satisfied with their respective shares, none of the parties have ever interfered into the possession of each others. In the meantime, present petitioners have executed a lease deed dated 17.07.2020 in favour of one Smt. Rekha Mishra. Respondent no. 1, when came to know about this lease deed qua land in question over which Smt. Rekha Mishra has intended to install retail outlet of petroleum products, has moved an objection dated 02.09.2020 before the Authorities concerned for cancellation of NOC dated 13.10.2020 which was granted in favour of Smt. Rekha Mishra for the establishment of retail outlet of petroleum product. On the basis of aforesaid complaint, NOC was cancelled by the Authorities concerned and the same was assailed in writ petition before this Hon'ble Court. Finally it was culminated vide order dated 17.02.2021, by which her NOC was revised. In doubtful circumstances, respondent no. 1 has made intentional move by filing restoration application dated 07.09.2021, as well, before Commissioner against the order dated 24.08.2005, which was rejected by the Additional Commissioner.
By concealing the subsequent development with respect to the preliminary decree passed between the respondent no.1 and his brothers, and the objection filed by him before the Authorities concerned for the cancellation of NOC which was issued in favour of Smt. Rekha Mishra, respondent no. 1 has preferred a revision dated 19.03.2021 (Annexure-8) along with application for interim order supported by an affidavit (Annexure-9) before respondent no.3. In paragraph nos.17 and 20 of the affidavit filed in support of the stay application (Annexure- 9), it is stated that respondents have started measuring property in question on 07.07.2020 for the purposes of establishment of petrol pump. It is further stated that he is in possession over the property in question and contesting respondents are making much pressure and adamant to change the nature of property by installing the petrol pump.
Several developments, over the period of more than 15 years from dated 24.08.2005 up to the filing of revision i.e. dated 19.03.2021, are relevant to be considered in deciding the application for interim order. In the light of the aforesaid facts, it will not be appropriate to pass an ex parte interim order in favour of the revisionist (respondent no.1 herein), without giving opportunity of hearing to the respondents (petitioners herein), who have conferred their legal right and title over the property in question being recorded tenure holder on the basis of order passed by the competent court and will be badly prejudiced, in case, the interim order is passed, ex parte, behind his back, without giving them proper and effective opportunity of hearing.
In these peculiar facts and circumstances of the present matter, it would not be justified to grant ex parte stay order on the application for interim relief without considering canons of the interim injunction as enunciated under the Order XXXIX Rule 1 of C.P.C.
In this conspectus, as above, no useful purpose would be served in keeping this matter pending, therefore, this Court deems it appropriate to decide the present writ petition finally with a direction to Board of Revenue (respondent no.3) to decide the application for interim order filed by respondent no.1, along with the memo of revision, denovo expeditiously, preferably, within the period of one month from the date in receipt of copy of this order.
It is expected that order should be passed, in accordance with law, after giving opportunity of hearing to both the parties without granting them unnecessary adjournments.
It is made clear that this Court has not considered anything with respect to the merits of the revision pending before the Board of Revenue and any observation made by this Court in deciding the present writ petition shall not be binding upon the Board of Revenue in deciding interim injunction application of the revisionist.
Accordingly, instant writ petition is partly allowed. Impugned order dated 08.04.2021 passed by respondent no.3, so far as it is against the petitioners qua interim order, is hereby quashed. There is no order for cost.
Order Date :- 30.7.2021 A.P. Pandey/Manish Himwan