Allahabad High Court
Maheshwar Pratap Shahi vs State Of U.P. And 5 Others on 13 February, 2020
Author: Prakash Padia
Bench: Prakash Padia
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 49 Case :- WRIT - B No. - 412 of 2020 Petitioner :- Maheshwar Pratap Shahi Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Alok Kumar Dubey Counsel for Respondent :- C.S.C.,Krishna Kant Singh Hon'ble Prakash Padia,J.
Heard counsel for the petitioner.
It appears from perusal of the record that against the order dated 04.06.2018 passed by the Sub-Divisional Magistrate, Tamkuhi Raj, District- Kushinagar an appeal was preferred by the petitioner before the Additional Commissioner (Judicial) Gorakhpur Region, Gorakhpur/respondent no. 3. The said appeal was duly admitted by the respondent no. 3 vide order dated 28.06.2018 but the stay application filed by the petitioner was rejected. Against the aforesaid order, a revision was preferred by the petitioner before the Board of Revenue, U.P. Lucknow/respondent no. 2, the same was also rejected by the Board of Revenue vide judgment and order dated 02.12.2019 on the ground that revision is not maintainable against the interlocutory order.
It is argued by the counsel for the petitioner that once the appeal preferred by the petitioner was admitted, petitioner is entitled for the grant of interim order also in his favour.
Heard counsel for the petitioner. Learned Standing Counsel accepted notice on behalf of respondent nos. 1 to 4 and Sri Krishna Kant Singh, learned counsel appearing on behalf of respondent no. 6.
In the facts and circumstances of the case, in view of the order proposed to be passed today, notice need not be issued to the respondent no. 5.
With the consent of counsel for the parties, the present writ petition is disposed of finally at this stage in terms of the Rules of the Court.
The Supreme Court in the case of Mool Chand Yadav and another v. Raza Buland Sugar Company Limited, Rampur and others, (1982) 3 SCC 484, has held that if serious consequences ensue, in that event the stay application should be considered by the appellate court. The relevant part of the judgement is extracted herein-below:
"4. .......Now, if the order is not suspended in order to avoid any action in contempt pending the appeal, Mool Chand Yadav would have to vacate the room and hand over the possession to the respondents in obedience to the Court's order. We are in full agreement with Mr. Manoj Swarup, learned Advocate for respondents, that the Court's order cannot be flouted and even a covert disrespect to Court's order cannot be tolerated. But if orders are challenged and the appeals are pending, one cannot permit a swinging pendulum continuously taking place during the pendency of the appeal. Mr. Manoj Swarup may be wholly right in submitting that there is intentional flouting of the Court's order. We are not interdicting that finding. But judicial approach requires that during the pendency of the appeal the operation of an order having serious civil consequences must be suspended. More so when appeal is admitted."
It appears from perusal of the facts of the case that though appeal was admitted by the respondent no. 2 but without giving any cogent reasons the stay application was rejected.
In the facts and circumstances of the case, the present writ petition is disposed of finally permitting to the petitioner to submit a fresh stay application before respondent no. 3 along with certified copy of this order within a period of two weeks from today. If such stay application is preferred, the respondent no. 3 will pass appropriate orders on the same taken into consideration the law laid down by the Supreme Court in the Case of Mool Chand Yadav and another v. Raza Buland Sugar Company Limited, Rampur and others, (supra), expeditiously and preferably within a period of three months thereafter.
For the period of four months status quo as on date shall be maintained between the parties on the spot.
Observations made by the revisional court will not be read by the Additional Commissioner while passing the order on the fresh stay application filed by the present petitioner and he will pass orders on the application submitted by the petitioner in accordance with law.
Order Date :- 13.2.2020 Swati