Shabhakant vs State of U.P. and Others

Amreshwar Pratap Sahi, J.—Issue notice to the respondent Nos. 4 to 9. According to the petitioner the respondent Nos. 4 and 5 in collusion with each other have created complications and in the garb of an ex-parte decree in a suit for partition u/s 176 of the U.P.Z.A. & L.R. Act 1950 dated 3/15.6.2012 are trying to disturb the possession of the petitioner over the land in dispute.

The background of the dispute is that an ex-parte order was passed in the suit on 3/15.6.2012. Aggrieved the petitioner filed a restoration application on which the Trial Court passed an interim order on 2.7.2012. The respondent No. 4 Kamla Kant filed a revision against the said order passed on the restoration application which revision was allowed on 28.7.2012 with a direction to the Trial Court to decide the restoration application filed by the petitioner on merits. The consequence of the same is that the restoration application is still pending consideration before the Sub-Divisional Officer.

Taking advantage of the ex-parte decree, the respondent No. 4 Kamla Kant filed writ petition No. 61170 of 2012 before this Court praying that inspite of the decree, possession was not being delivered in terms of the partition decree, and consequently this Court on 26.11.2012 passed an interim order calling upon the officials to explain as to why possession is not being handed over.

The Sub-Divisional Magistrate appeared and gave a statement on 12.12.2012 for complying with the earlier order of the High Court whereafter the case was directed to be listed on 3.1.2013.

On 3.1.2013 this Court by a detailed order, copy whereof has been filed as Annexure No. 9 to the writ petition, dismissed the writ petition, holding that the respondent No. 4 Kamla Kant had obtained the orders by concealing material facts relating to the filing of the revision.

In the aforesaid background, it appears that the respondent No. 5 filed a fresh revision against the same proceedings in which records of the case were summoned and the said proceedings are pending before the Additional Commissioner.

Learned Counsel submits that this was another device to forestall the disposal of the restoration application as is evident from the order sheet of Revision No. 193 of 2013, copy whereof has been filed as Annexure No. 7 to the writ petition. Learned Counsel submits that since the file has been summoned by the learned Additional Commissioner in the Revision filed by the respondent No. 5, the restoration application which was to be disposed, still remains pending. Learned Counsel further submits that another revision has been filed in the same matter and therefore it appears that the respondent Nos. 4 and 5 have colluded with each other to see that the ex-parte decree is some how or the other implemented.

To achieve this end the respondent No. 4, according to the petitioner, filed a miscellaneous application on the administrative side before the Sub-Divisional Officer who without putting the petitioner to notice issued a direction to the Revenue Inspector to carry out the demarcation proceedings with the aid of the police. It is in fact a device to some how or the other implement the ex-parte decree for the which the restoration application is still pending and the revision filed by the respondent No. 4 is also pending consideration.

Another application was filed by the petitioner on coming to know of the administrative proceedings on which an order has been passed by the Sub-Divisional Officer that the matter should be discussed whereafter the demarcation proceedings can be carried out.

Learned Counsel submits that once the dispute is still pending as per the remand order dated 28.7.2012 and the High Court has already dismissed the writ petition filed by the respondent No. 4, then in such circumstances there was no occasion for the Sub-Divisional Officer to have passed an administrative order without taking notice of the aforesaid facts.

There is yet another dimension to the dispute namely that the respondent No. 4 Kamla Kant in his application has mentioned about interim order passed in a civil suit. This fact has been explained with the help of a supplementary affidavit bringing on record the interim order passed in original suit No. 271 of 2013 wherein an injunction order has been passed by the Civil Judge, Junior Division, Jaunpur in relation to plot No. 64 only.

The application filed by the respondent No. 4 before the Sub-Divisional Magistrate also adds plot No. 66 but the same is not subject-matter of the order in the civil suit.

The petitioner also claims to have filed Original Suit No. 738 of 2008 praying for an injunction in relation to the same holding no orders have been passed but the same is pending.

There is therefore on that the matter is still pending consideration before the Sub-Divisional Magistrate on the judicial side on the restoration application on which decision is yet to be taken in terms of the order dated 28.7.2012. Apart from this, the order passed by the Civil Court is also in existence. In the circumstances prima facie any administrative order amounting to interference with the judicial process in not correct. In the aforesaid background consequently let all the respondents file a counter-affidavit within three weeks, one week for rejoinder-affidavit. Until further orders of this Court further proceedings before the Sub-Divisional Magistrate shall remain stayed and the operation of the order dated 31.8.2013 passed on the administrative side shall also remain stayed. It is further provided that the proceedings in revision filed by respondent No. 5 pending before the Additional Commissioner shall also remain stayed so that the matter may be disposed of finally by this Court after hearing the respective parties. No demarcation proceedings shall be carried out in view of the order passed by this Court today.