Court No. - 42
Case :- WRIT - C No. - 9668 of 2021 Petitioner :- Smt. Usha Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Girish Kumar Singh Counsel for Respondent :- C.S.C.,Sher Bahadur Singh
Hon'ble Vivek Kumar Birla,J.
Heard learned counsel for the petitioner as well as Sri Siddharth Singh, learned Additional Chief Standing Counsel and Sri S.B. Singh, learned counsel for the gaon sabha and have perused the record.
At the very outset, learned counsel for the petitioner submits that the controversy involved in the present writ petition is fully covered by a decision of this Court dated 18.3.2021 passed in Writ-C No. 7535 of 2021 (Smt. Kusum vs. State of UP and 3 others).
The said judgement dated 18.3.2021 is quoted hereinunder:-
"Heard learned counsel for parties.
On 27 October 2009 proceedings drawn under Section 122B of the 1950 Act were dropped by the Assistant Collector upon noting that the land in question would be governed by the Government Grants Act. On the basis of a subsequent report drawn by revenue officials, fresh proceedings were drawn and the Assistant Collector framed orders for eviction in terms of Section 67 of the U.P. Revenue Code 2006 on 15 July 2019.
Aggrieved by the aforesaid, the petitioner had preferred a statutory appeal which is pending. During the pendency of that appeal, the Tehsildar has proceeded to enforce the order of 15 July 2019 and has also issued a recovery certificate. The submission of learned counsel is that adoption of coercive measures during the pendency of the aforesaid appeal, is clearly arbitrary. The Court finds force in the submissions so addressed since it is manifest that if the original order was to be enforced during the pendency of the statutory appeal, the proceedings would not only be rendered infructuous, they would also visit the petitioner with serious civil consequences. The Court also bears in mind the challenge to the original order on jurisdictional grounds with the petitioner contending that once findings in his favour had come to be recorded in the order of 27 October 2009, proceedings under Section 67 of the Code could not have been drawn afresh.
In view of the aforesaid position of facts which are not disputed before this Court, this petition would merit being disposed of on the following terms.
It shall be open to the petitioner to move an application for stay in the pending appeal within a period of four weeks from today. The Appellate Authority shall be free to consider and decide that application or the appeal itself with expedition. Till such time as the stay application or the appeal itself is decided, whichever be earlier, no coercive steps shall be taken against the petitioner including those for recovery of damages.
All contentions of respective parties on merits are kept open."
Consequently, the present petition is also disposed of in terms of the aforesaid judgement dated 18.3.2021 as quoted above, however, with some modifications.
It is provided that in case the petitioner moves an application for stay in the pending appeal within a period of three weeks from today, the appellate authority shall be free to consider and decide that application preferably within one months and the appeal itself be decided preferably within a period of 3 months provided there is no legal impediment as well as the functioning of the court is not affected by any reason related to COVID-19 Pandemic.
Till such time as the stay application or the appeal itself is decided, whichever be earlier, no coercive steps shall be taken against the petitioner including those for recovery of damages.
No order as to costs.
Order Date :- 27.7.2021 Abhishek