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Sri Kishan And Anr. vs Divisional Commissioner, Agra ...

High Court Of Judicature at Allahabad|31 January, 2002

JUDGMENT / ORDER

JUDGMENT R.R. Yadav, J.
1. Heard the learned counsel for the petitioners as well as learned standing counsel. Perused the averments made in the writ petition.
2. Without delineating the facts in detail the present writ petition deserves to be allowed on the admitted facts between the parties.
3. Indisputably, the petitioners filed an appeal before the Divisional Commissioner. Agra Division, Agra. While admitting the appeal, the Divisional Commissioner. Agra Division. Agra, had granted an ad-interim stay order on 17.4.2001 holding that the lease of the petitioners is valid up to 2.7.2002, therefore, they are entitled to extract sand from the land in dispute till their lease is valid. The aforesaid ad-interim stay order was granted by appellate authority after hearing the learned counsel for both the sides. Subsequently, on 22.1.2002 the appellate authority instead of deciding the appeal on merits, vacated the ad-interim stay order dated 17.4,2001 reducing the period of entitlement of petitioners to extract sand from the disputed land till the expiry of their lease.
4. It is strenuously urged by the learned counsel for the petitioners that once an ad-interim stay order was passed on 17.4.2001 after hearing the learned counsel for both the sides by the Divisional Commissioner, Agra Division. Agra, then he has no jurisdiction to vacate the aforesaid ad-interim stay order on subsequent date by the order impugned dated 22.1.2002 on vague and ambiguous ground even before expiry of the period of lease, for which they have already deposited royalty.
5. The learned standing counsel, after going through both the orders submitted at the out set that instead of admitting the writ petition, an order may be passed adjusting the equity between the parties. In feeble voice the learned standing counsel supported the subsequent order dated 22.1.2002 passed by appellate authority on the ground of report of Collector.
6. In the facts and circumstances of the present case, it is held that once ad-interim stay order was granted by the Divisional Commissioner, Agra Division, Agra, on 17.4.2001. Annexure-11 to the writ petition after hearing learned counsel for both the sides, then thereafter he has no legal justification to vacate the aforesaid ad-interim stay order by his impugned order dated 22.1.2002 (Annexure-17 to the writ petition) instead of deciding the appeal on merits after receipt of report from Collector, Agra. It is to be Imbibed that if an ex parts ad-Interim order is granted in an appeal or in a revision it is true that other side may move stay vacate application and after hearing both the parties, such ex pane ad-interim order may be maintained, modified or may be vacated but in those cases where after hearing both the parties, ad-interim stay order is passed, then it should not be vacated in the same proceeding. It is held that granting or refusing ad-interim stay order after hearing both the sides operates as res Judicata in the same proceeding. The aforesaid principle is based on public policy to detain the confidence of the public at large and litigant public in particular with Courts and administrators vested with judicial powers.
7. In the facts and circumstances of the present case, equity demands that if appellate authority received a report from the Collector, Agra, then instead of vacating the ad-interim stay order dated 17.4.2001, which was passed after hearing learned counsel for both the sides, it ought to have decided the appeal itself on merit. In view of the aforesaid peculiar piquant situation the equity in the facts and circumstances of the present case deserves to be adjusted without causing any prejudice to any of the party. I am of the view that in the facts and circumstances of the present case, equity can be adjusted between the parties without causing any prejudice to any of them by directing the appellate authority to decide the appeal expeditiously on merits. Till decision of the appeal by appellate authority Its earlier order dated 17.4.2001 granting ad-interim order after hearing the learned counsel for both the sides is to remain operative whereas its subsequent order dated 22.1.2001 vacating the ad-interim stay order dated 17.4.2001 deserves to be quashed.
8. As a result of the aforementioned discussion, the instant writ petition is allowed and the impugned order dated 22.1.2002 (Annexure-17 to the writ petition) is hereby quashed and earlier order dated 17.4.2001 (Annexure-11 to the writ petition) passed by appellate authority is restored with a direction to decide the appeal on merits expeditiously in accordance with law.
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Title

Sri Kishan And Anr. vs Divisional Commissioner, Agra ...

Court

High Court Of Judicature at Allahabad

JudgmentDate
31 January, 2002
Judges
  • R Yadav