Shiv Sagar vs Additional Commissioner (Judicial)

Devendra Kumar Arora, J.—Notice on behalf of opposite parties No. 1 and 14 has been accepted by the learned Chief Standing Counsel. Shri. R.N. Gupta has put in appearance on behalf of opposite party No. 13. Issue notice to opposite parties No. 2 to 12 returnable at an early date.

Learned Counsel for the Petitioners may file steps for notice upon private opposite parties within a week.

By means of present writ petition, the Petitioners have challenged the order dated 16.8.2011 passed by Additional Commissioner (Judicial), Faizabad Division, Faizabad staying the injunction order dated 22.6.2011 passed by Deputy Collector, Amethi, Chatrapati Sahuji Maharaj Nagar, in suit No. 138 u/s 229 B of the U.P.Z.A. & L.R. Act, by which directions were issued to the parties to maintain the status quo in respect of the land in dispute till further orders.

Submission of learned Counsel for the Petitioners is that the Petitioners instituted a suit u/s 229 B of the U.P. Zamindari Abolition & Land Reforms Act (hereinafter referred to as ''Act'') for declaration that the entry in the name of opposite parties No. 2 and 3 over the land in dispute is forged and fictitious and the Petitioners are Bhumidhar of land in dispute. The said dispute ultimately came to this Court by means of writ petition No. 6403 (M/S) of 2009 '' Shiv Sagar and Ors. v. Board of Revenue, Allahabad and others''. Initially an interim order was granted restraining the opposite parties No. 2 and 3 from raising construction over the land in dispute. Finally on 24.2.2010 the writ petition was allowed and the order dated 4.11.2009 of the Board of Revenue was quashed and the order of Sub Division Officer dated 28.1.2009 was restored and the matter was remanded back to decide the same expeditiously within a period of six months. The original suit of the Petitioners was rejected on account of defective pleading and was permitted to file a fresh suit by means of order dated 20.5.2011.

The Petitioners filed a fresh suit u/s 229 B of the Act. After issuance of the notice to the opposite parties and taking into consideration the objections of the opposite parties, the Sub Divisional Magistrate, Amethi passed an interim order on 22.6.2011, thereby directing the parties to maintain the status quo. The said order was challenged by opposite parties No. 2 and 3 by means of of revision No. 26/1216 C.S.M. Nagar u/s 333 of the Act. The Petitioners filed their objections on 29.6.2011 but the Additional Commissioner (Judicial) Faizabad Mandal, Faizabad without taking into consideration the objections filed by the Petitioners stayed the operation of the interim order granted by trial court and fixed the case for hearing on 30th December, 2011 by means of order dated 16.8.2011.

By means of this writ petition, the Petitioners challenged the impugned order dated 16.8.2011 passed by the Additional Commissioner (Judicial), Faizabad Division, Faizabad firstly on the ground that since the order dated 22.6.2011 passed by the trial court after taking into consideration the objections of opposite parties and giving full opportunity of hearing, therefore, revision was not maintainable and the opposite parties were required to file appeal. The second objection of learned Counsel for the Petitioners is that though the Petitioners have filed objections against the revision but without considering the objections of the Petitioners, a non speaking order has been passed. It is submitted by the learned Counsel for the Petitioners that net result of the impugned order would be that the opposite parties No. 2 and 3 will be allowed to raise construction and that the same will materially affect the cause of action of the Petitioner and the same will not be in the interest of justice.

Learned Counsel for the Petitioners in support of his submission placed reliance on the judgment of the Hon''ble Supreme Court reported in 2005 (23) LCD 298 SC, Maharwal Khewaji Trust (Regd.) Faridkot v. Baldev Dass, in which it has been held that the Court should not permit to change the nature of property in suit during pendency of the suit unless and until a case of irreparable loss or damage is made out by the party to the suit.

The relevant para 10 of the aforesaid judgment is reproduced as under:

... We do not think in the facts and circumstances of this case, the lower Appellate Court and the High Court were justified in permitting the Respondent to change the nature of property by putting up constructions as also by permitting the alienation of the property, whatever may be the condition on which the same is done. In the event of the Appellant''s claim being found baseless ultimately, it is always open to the Respondent to claim damages or, in an appropriate case, the court may itself award damages for the loss suffered, if any, in this regard. Since the facts of this case do not make out any extraordinary ground for permitting the Respondent to put up construction and alienate, the same, we think both the Courts below, namely, the lower Appellate Court and the High Court erred in making the impugned orders. The said orders are set aside and the order of the Trial Court is restored.

Learned Counsel for the Petitioners also placed reliance on the judgment of Hon''ble Supreme Court reported in Gangubai Bablya Chaudhary and Others Vs. Sitaram Bhalchandra Sukhtankar and Others, in which it has been held that the court is to see that the situation may not become irreversible by the time dispute is decided.

The relevant portion of para 6 of the aforesaid judgment is reproduced as under:

...Similarly we of the opinion that if Respondents are allowed to put up constructions by the use of the F.S.I for the whole of the land including the land involved in dispute, the situation may become irreversible by the time dispute is decided and would preclude fair and just decision of the matter. If on the contrary injunction is granted as prayed for the Respondents are not likely to be inconvenienced....

I have considered the submission of learned Counsel for the Petitioners and gone through the record.

Admittedly, the trial court passed the order of maintaining status quo after hearing both the parties on merits and while passing the said order it was also observed by the trial court that if any construction is made or the land in question is sold then it will result of multiplicity of the litigation. The opposite party No. 1, despite the fact that the Petitioners have filed objections to the revision, has not cared to examine the same and by way of non speaking order stayed the implementation of the order dated 22.6.2011 passed by the trial court regarding maintaining the status quo by the parties.

On due consideration, this Court comes to the conclusion that prima facie the case for interim relief is made out.

The operation and implementation of the order dated 16.8.2011, passed by the Additional Commissioner (Judicial), Faizabad division, Faizabad, in Revision No. 26/1216 C.S.M. Nagar, u/s 333 of the U.P.Z.A. and L.R., is hereby stayed till further orders of this Court.

All the opposite parties are directed to file their respective counter affidavits within four weeks. Rejoinder affidavit, if any, may be filed within two weeks thereafter.

List after expiry of the aforesaid period.