Jasveer Singh vs Board Of Revenue Uttarakhand And Ors

Lok Pal Singh, J

Present writ petition, under Article 227 of the Constitution of India, has been filed on behalf of the petitioner seeking writ in the nature of certiorari, quashing the impugned judgment and order dated 30.01.2019 passed by the learned Board of Revenue Uttarakhand, Dehradun in Revision No. 114/2018-19, Satveer Singh vs. Jasveer Singh & others to the extent whereby the parties have been directed to maintain status quo regarding land in dispute.

Brief facts, of the case, are that respondent no. 2 instituted a Suit No. 21 of 2014-15 before the Court of Assistant Collector, 1st Class, Roorkee for partition. During the pendency of the suit, plaintiff filed an interim injunction application stating therein that parties be restrained not to create any third party interest. Assistant Collector, 1st Class passed an order dated 29.08.2018 whereby parties were directed not to change the nature of the property in dispute and not to sell the same till the next date. Thereafter, on 31.08.2018 interim order was extended, and, again on 24.12.2018 interim order was extended. Feeling aggrieved, by the orders dated 31.08.2018 and 24.12.2018, petitioner preferred revision before the Additional Commissioner, Garhwal Mandal, Pauri, Camp Dehradun. Additional Commissioner, Garhwal Mandal, Pauri Camp, Dehradun passed the following order:-

Heard.

Admit the revision.

Notice to the opposite party. Record of the trial court be summoned.

Put up for hearing on 25.2.2019. Till then, effect and operation of the orders dated 31.02.2018 and 24.12.2018 shall remain stayed.

Feeling aggrieved, respondent no. 2 preferred revision no. 114 of 2018-19 before the Board of Revenue Uttarakhand Dehradun. Board of Revenue has recorded the finding that the order dated 09.01.2019 passed by the Additional Commissioner, Garhwal Mandal Pauri is interlocutory order, against which revision is not maintainable and dismissed the revision as premature and not maintainable, directing the Additional Commissioner, Garhwal Mandal, Pauri that in case any application is being filed by the plaintiff against the order dated 09.01.2019, same shall be decided after giving full opportunity of hearing to the parties and directed the parties to maintain status qua land in question till the decision of revision. Hence, present writ petition.

Learned counsel for the petitioner would submit that once the revision was dismissed as pre-mature, Board of Revenue become functus officio and could not have passed the order directing the parties to maintain status quo qua land in dispute. He placed reliance upon the judgment of this Court passed in Writ Petition No. 2669 of 2015 (M/S) Sri Sunil Kumar vs. Smt. Usha Devi and other decided on 24.04.2019 and emphasized upon paragraph no. 4. Paragraph no. 4 is extracted hereunder:-

"4. Having considered the fact that the plaintiff/ petitioner has proved his case, the appellate court has dismissed the appeal. While doing so, the appellate court ought not to have modified the order passed by trial court. After dismissal of appeal, the appellate court had become functus officio, and thus it cannot issue any direction to the court below. Thus, the appellate court has committed error of law in passing the impugned judgment and order dated 21.05.2015."

I have gone through the judgment supra. There is no quarrel in regard to the ratio of the judgment that after dismissal of the revision, appeal or suit, Court had become functus officio and, thereafter, Court cannot pass any further order. Principally, argument of the counsel for the petitioner is acceptable, but this Court, while exercising jurisdiction under Article 227 of the Constitution of India cannot shut its eyes in regard to the illegality perpetuated by the Addl. Commissioner, 1st Class in staying the effect and operation of the orders passed by the trial court. Perusal of the impugned order dated 09.01.2019, passed by Additional Commissioner, Garhwal Mandal would reveal that the revisional court, without assigning reasons, had stayed the effect and operation of the orders passed by the trial court whereby parties were directed that neither they change the nature of the property in dispute nor create third party interest.

This Court is of the considered view that the Additional Commissioner, Garhwal Mandal while admitting the revision has committed illegality in passing the order dated 09.01.2019, staying the effect and operation of the orders dated 31.05.2018 and 24.12.2018, which amounts to final order at admission of the revision, which is impermissible in law.

It is settled position in law that the order, which is illegal, cannot be quashed/set aside as it would otherwise revive another illegal order. The Hon'ble Apex Court in the case of State of Uttarakhand vs. Ajit Singh Bhola reported in (2004) 6 SCC 800 has held that the Court will not exercise its discretion and quash an order which appears to be illegal, if its effect is to revive another illegal order.

Having considered the facts and circumstances of the case, this Court is of the view that the order dated 9.01.2019 suffers from illegality. If this Court would set aside the order of the Board of Revenue dated 30.01.2019, it would certainly revive another illegal order. Thus, this Court is not inclined to quash the order dated 30.01.2019.

Thus, writ petition is devoid of merits, is dismissed. Since, revision is pending before the Additional Commissioner, Garhwal Mandal, Pauri, Camp Dehradun, it is expected that Additional Commissioner, Garhwal Mandal, Pauri shall decide the revision, in accordance with law, expeditiously preferably within six months from the date of production of certified copy of this judgment. Parties shall co-operate in the expeditious hearing of the revision. Unnecessary adjournments to the parties shall be avoided.