Zahur Hasan vs Commissioner, Lucknow Division and another

Hari Nath Tilhari, J.—The petitioner has prayed that a writ of certiorari be issued, quashing the order dated 2221993, passed by oppositeparty No. 2, suspending the petitioner from the office of Pradhan in purported exercise of powers conferred under Section 95(1)(gg) of U.P. Punchayat Rajya Act.

The petitioner, as appears from the perusal of the petition, has preferred a revision against the order of the oppositeparty No. 2, as stated in paragraph 10 of the writ petition, on 2621993 alongwith an application for staying the operation of the order impugned in the revision.

In para 11 of the writ petition, it has been stated that the revision was fixed for 2393 for order on the application for stay, but no orders had been passed on that application and case was adjourned for 16393. It has further been stated that on 16393 no orders had been passed on the application for stay and the case had been adjourned for 30393 and on 30393 the record had not been received with the result the Court had adjourned the hearing of the application for stay for 20493.

The revision is yet pending and has not been disposed of. The petitioner has already availed the remedy by preferring the revision before the Commissioner and the suspension order is subject to that revision which has to be decided by the Commissioner on merits, there appears no justification in admitting the writ petition as petitioner is not entitled to file the writ petition, challenging that order of suspension at this stage. As such, regarding relief no. 1 the petition b dismissed on the ground that petitioner has already availed the alternative remedy and it is open to him to argue all the grounds on the basis of which he can challenge the validity of order dated 22293. The petitioner has claimed another relief that the oppositeparties by way of writ of mandamus or any appropriate writ, order or direction in the nature of writ of mandamus be directed to stay the operation of the order dated 22293 passed by oppositeparty no. 2

The facts mentioned above clearly indicate that since after the admission of revision, no order has so far been passed on the stay application.

That it is settled principle of law as has been laid down in case of Shri Kihota Hallohon v. Mr. Zachilhu and others, (AIR 1993, SC page 4 12) as well as by this Court in the case of Ram Baran Singh v. Commissioner, Faizabad Division, Faizabad [1992 (10) LCD page 490], that ordinarily when a revision or appeal is admitted in order to preserve in status quo the rights of the parties as well as to save the proceeding from becoming infructuous, it is just and proper as well as it is something act in accordance with law to grant interim order of stay.

In the case of Shri Kihota Hollohon v. Mr, Zachilhu and others, vide the paragraph 51 thereof, the Hon''ble Supreme Court had been pleased to lay down as under;

�Before parting with the case, we should advert to one other circumstance. During the interlocutory stage, the constitution bench was persuaded to make certain interlocutory orders which, addressed as they were to the Speaker of the House, (though, in a different capacity as an adjudicatory forum under the Tenth Schedule) engendered complaints of disobedience culminating in the filing of petitions for initiation of proceedings of contempt against the Speaker. It was submitted that when the very question of jurisdiction of the Court to deal with the matter was raised and even before the constitutionality of paragraph 7 had been pronounced upon, self restraint required that no interlocutory orders in a sensitive area of the relationship between the legislature and the Courts should have been made.

The purpose of interlocutory orders is to preserve in status quo the right of the parties, so that, the proceedings do not become infructuous by any unilateral overt acts by one side or the other during its pendency. One of the contention urged was as to the invalidity of the amendment for noncompliance with the proviso to Article 368(2) of the Constitution. It has now been unanimously held that Paragraph 7 attracted the proviso to Article 368(2). The interlocutory orders in this case were necessarily justified so that, no landslide changes were allowed to occur rendering the proceedings ineffective and infructuous.�

In this view of the matter it appears to me just and proper that the oppositepartyCommissioner, Lucknow Division, Lucknow be directed to consider and dispose of the petitioner''s application for staying the operation of suspension order in the light of the law laid down above on the date fixed in the revision i.e. 20493. Till the disposal of the application for interimrelief by the Commissioner, the operation of suspension order is hereby stayed. It is directed and expected that the Commissioner will expedite the hearing and dispose of the revision itself and the same case shall be decided in no case later than two months. The lawyers are expected to cooperate in the disposal and decision of the revision by the Commissioner on early date.

The writ petition is disposed of finally.

(Ordered accordingly)