Dismissed

Jagpati v. State of U.P. Thru. Addl. Chief Secy. Revenue Civil Secrett. Lko. and 2 Others

Allahabad HC12 Jul 2023/595/2023

Case brief

AI extract

What is this about?

The petitioner sought to quash a order vacating an ex-parte interim stay granted to him. The High Court declined to interfere, holding that the Deputy Director of Consolidation did not exercise discretion arbitrarily and that the petitioner, being a non-party to the original consolidation proceedings, could not maintain a revision.

What did the court decide?

The Writ petition was dismissed, leaving the impugned order of the Respondent No. 2 operative.

Jagpati Vs State of U.P. Thru. Addl. Chief Secy… — Landlord and Tenant | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC-LKO:44955

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Court No. - 18

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Case :- WRIT - B No. - 595 of 2023 Petitioner :- Jagpati Respondent :- State Of U.P. Thru. Addl. Chief Secy. Revenue Civil Secrett. Lko. And 2 Others Counsel for Petitioner :- Mohammad Ehtesham Khan Counsel for Respondent :- C.S.C.,Ajay Kumar Pandey

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Hon'ble Saurabh Lavania,J.

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Heard Mohammad Ehtesham Khan, learned counsel for the petitioner, Sri Hemant Kumar Pandey, learned State counsel appearing for the State/respondent Nos. 1 & 2 and Sri Ajay Kumar Pandey, learned counsel for the caveator.

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By means of this petition, the petitioner has prayed for the following main

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relief:-

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"(1) Issue a writ, order or direction in the nature of certiorari quashing the impugned judgment and order dated 07.06.2023 passed by the opposite party No. 2 in Revision No. 2305 In Re: Jagpati Versus Gaya Prasad and others contained as Annexure No. 1 to this writ petition to the extent it has vacated the interim order dated 14.10.2022.

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(ii) Issue a writ, order or direction in the nature of mandamus commanding the opposite party No. 2 to decide the Revision No. 2305 In Re: Jagpati Versus Gaya Prasad and others within stipulated time prescribed by this Hon'ble Court and till then the parties may be directed to maintain status quo with regard to the nature and possession of the land in dispute."

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By the impugned order dated 07.06.2023, the respondent No. 2/Deputy Director of Consolidation, Ayodhya (DDC) vacated the ex-parte interim order dated 14.10.2022, passed in Revision No. 2305/202254042300001756 preferred by the petitioner. The relevant observations are as under:-

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"IkzLrqr fd;s x;s rdksZa ds vkyksd esa i=koyh ij miyC/k lk{;ksa ds voyksdu ls Li"V gS fd pdcUnh vf/kdkjh }kjk okn la[;k&231 o 256 vUrxZr /kkjk&9d¼2½ tksr pdcUnh vf/kfu;e esa ikfjr vkns'k fnukad&26-09-2022 ds fo:) jkefi;kjh dh vksj ls cUnkscLr vf/kdkjh pdcUnh ds U;k;ky; ij vihy la[;k&1240@202254042300001744 jkefi;kjh cuke~ x;k izlkn vkfn fnukad&30-09-2022 dks izLrqr dh x;h gS] tks vHkh fopkjk/khu gSA ;g vo'; gS fd mDr vihy esa jkefi;kjh ds vf/koDrk }kjk vihy dks okil fy;s tkus gsrq fnukad&16-03-2023 dks izkFkZuk&i= izLrqr fd;k x;k gSA jkefi;kjh fookfnr vkjkth dh fodzsrk gS vkSj txirh dszrk gSA fodszrk dk vf/kdkj gh dszrk dks izkIr gksrk gSA tc ewy i{kdkj jkefi;kjh }kjk fu;ekuqlkj /kkjk&11¼1½ tksr pdcUnh vf/kfu;e ds vUrxZr vihy izLrqr dj pdcUnh vf/kdkjh ds vkns'k dks pqukSrh nh tk pqdh Fkh rks pdcUnh vf/kdkjh ds mlh vkns'k ds fo:) dszrk txirh dks fuxjkuh izLrqr djus dk dksbZ vkSfpR; ugha jgk gSA txirh dh vksj izLrqr fuxjkuh dh /kkjk&8 esa Lo;a dgk x;k gS fd voj U;k;ky; }kjk Ik{k eqdnek u cukdj foIk{kh ds gd esa vkns'k ikfjr fd;k x;k gSA bl izdkj ;g Li"V gS fd tc txirh voj U;k;ky; esa i{kdkj ugha jgh gS rks mls iz'uxr vkns'k ds fo:) okn ;ksftr djus dk dksbZ vf/kdkj

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ugha gS tSlk fd vkj0Mh02003¼94½ ist&79 ist&227 ,oa ist&405 esa fof/k O;oLFkk nh x;h gSA izLrqr lk{;ksa ls Li"V gS fd fuxjkuhdrkZ txirh }kjk rF;ksa dks fNikdj mDr fuxjkuh izLrqr dh x;h ,oa ,di{kh; :i ls cgl izLrqr dj LFkxu vkns'k fnukad&1410-2022 izkIr dj fy;k x;k gSA fookfnr izdj.k esa ewy i{kdkj jkefi;kjh o x;k izlkn gh jgsa gS vkSj nksuks i{kksa ds e/; /kkjk&11¼1½ tksr pdcUnh vf/kfu;e ds vUrxZr pdcUnh vf/kdkjh ds vkns'k fnukad&26-09-2022 ds fo:) fopkjk/khu jgh gSA

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fopkjksijkUr eS bl er dk g¡w fd pdcUnh vf/kdkjh ds vkns'k fnukad&26-092022 ds fo:) jkefi;kjh }kjk /kkjk&11¼1½ tksr pdcUnh vf/kfu;e ds vUrxZr fu;ekuqlkj fnukad&30-09-2022 dks gh vihy izLrqr gks pqdh FkhA vihy izLrqr gks tkus ds mijkUr rF;ksa dks fNikdj dzsrk txirh }kjk fnukad&14-10-2022 dks fuxjkuh izLrqr djds ,di{kh; :i ls LFkxu vkns'k izkIr dj fy;k x;k gS] tks fof/kd u gksus ds dkj.k fujLr fd;s tkus ;ksX; gSA rnuqlkj x;kizlkn }kjk izLrqr izkFkZuk&i= Lohdkj fd;s tkus ;ksX; gSA

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vkns'k

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mijksDr foospu ds vk/kkj ij x;kizlkn }kjk IkzLrqr izkFkZuk&i= Lohdkj fd;k tkrk gSA bl U;k;ky; }kjk ikfjr ,di{kh; LFkxu vkns'k fnukad&14-10-2022 fujLr fd;k tkrk gSA i{kdkj i=koyh esa vxzsrj dk;Zokgh gsrq fnukad&14-06-2023 dks mifLFkr gksA"

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Based upon the aforesaid observations, a query has been put to Mohammad Ehtesham Khan, learned counsel for the petitioner that as to whether the revision is maintainable under Section 48 of U.P. Consolidation of Holdings Act, 1953 (in short "Act of 1953") by a person, who was not a the party in the proceedings before the Consolidation Officer concerned. In response, he placed a judgment of the Division Bench of this Court passed in the case of Faujdar Son of Nagar vs Deputy Director Of Consolidation reported in 2006 (3) AWC 2243 , wherein, the question was to the effect that as to whether the Deputy Director of Consolidation can exercise the revisional jurisdiction under Section 48 of the Act of 1953 against the appealable order passed by the Consolidation Officer were no appeal has been filed, to which, the Division Bench has answered that the revision would be maintainable but in this case, the issue was not as to whether a person, who was not the party in the proceedings before the Consolidation Officer can prefer a revision, as such, this judgment would not apply in the instant case.

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As per the observations made in the impugned order dated 07.06.2023, the revision of the petitioner was not maintainable on the count that he was not the party to the proceedings before the Consolidation Officer, as such, this Court is of the view that based upon the judgment placed by the learned counsel for the petitioner, the submission of petitioner's counsel that the revision is/was maintainable is completely fallacious.

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It is settled principle of law that the discretion if exercised by the Courts concerned then the Appellate Courts should not interfere in the discretion exercised by the Courts concerned, if the discretion so exercised has been exercised judicially and not arbitrarily.

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Further, the Hon'ble Apex Court says that granting and refusing of interim order is the discretion of the Authority/Court concerned and it should not be interfered. On the scope of interference with discretionary orders even in appeal, the Hon'ble Supreme Court holds thus, in Wander v. Antox India Pvt. Ltd.; 1990 Supp SCC 727 :

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"13. On a consideration of the matter, we are afraid, the appellate bench fell into error on two important propositions. The first is a misdirection in regard to the very scope and nature of the appeals before it and the limitations on the powers of the appellate court to substitute its own discretion in an appeal preferred against a discretionary order. The second pertains to the infirmities in the ratiocination as to the quality of Antox's alleged user of the trademark on which the passing-off action is founded. We shall deal with these two separately.

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The appeals before the Division Bench were against the exercise of discretion by the Single Judge. In such appeals, the appellate court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by that court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial court's exercise of discretion. After referring to these principles Gajendragadkar, J. in Printers (Mysore) Private Ltd. v. Pothan Joseph [(1960) 3 SCR 713 : AIR 1960 SC 1156] : (SCR 721)

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"... These principles are well established, but as has been observed by Viscount Simon in Charles Osenton & Co. v. Jhanaton [1942 AC 130] '...the law as to the reversal by a court of appeal of an order made by a judge below in the exercise of his discretion is well established, and any difficulty that arises is due only to the application of well settled principles in an individual case'."

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The appellate judgment does not seem to defer to this principle."

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In the light of aforesaid, this Court considered the impugned order dated 07.06.2023 including the quoted portion of the same.

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Upon due consideration, this Court finds that the DDC considered the fact(s) that (i) against the order dated 26.09.2022, which was challenged by the petitioner in the revision before DDC, an appeal was filed on 30.09.2022 by Ram Pyari (vendor) from whom the petitioner purchased the land, in dispute, is pending consideration, (ii) the petitioner filed the revision on 14.10.2022 challenging the order dated 26.09.2022 and (iii) the petitioner was not a party before the Consolidation Officer and thereafter, observed that the revision filed by the petitioner is not maintainable, as the petitioner was not the party before the Consolidation Officer and in this regard, considered the judgment passed in the case of Sukhjinder Jeet Kaur and others vs. DDC/Additional Collector, Rampur and others reported in [2003 (94) RD 79] and also observed that upon concealment of facts, the petitioner obtained the ex-parte interim order and thereafter, vacated the ex-parte interim order dated 14.10.2022. Thus, to the view of this Court, the discretion exercised by DDC for vacation of ex-parte interim order dated 14.10.2022 has not been exercised arbitrarily.

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In view of above, this Court is not inclined to entertain this petition challenging the order impugned dated 07.06.2023. It is accordingly dismissed .

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Before parting, as the revision is pending consideration, it would be appropriate to observe that while deciding the revision, the DDC would not be influenced by any of the observations made in the impugned order dated 07.06.2023 affirmed by this order. It is for the reason that while considering the issue of vacation of ex-parte interim order, the observations have been made in the impugned order dated 07.06.2023.

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Order Date :- 12.7.2023 Arun/-

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Digitally signed by :- ARUN KUMAR GANGWAR High Court of Judicature at Allahabad, Lucknow Bench

Jagpati v. State of U.P. Thru. Addl. Chief Secy. Revenue Civil Secrett. Lko. and 2 Others

Case brief

What is this about?

What did the court decide?

Jagpati v. State of U.P. Thru. Addl. Chief Secy. Revenue Civil Secrett. Lko. and 2 Others

Case brief

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What did the court decide?

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