Zulfikar v. Momin and others). b) Issue a writ of mandamus directing the
Case Details
Court No. - 18 Case :- WRIT - B No. - 509 of 2022 Petitioner :- Zulfakar Respondent :- Board Of Revenue U.P. At Allhabad And 66 Others Counsel for Petitioner :- Anuruddh Chaturvedi Counsel for Respondent :- C.S.C.,Arjun Singhal,Kaushal Kishore Mani Hon'ble Prakash Padia,J. The petitioner has preferred the present petition inter-alia with the following prayers:- "a) Issue a writ of certiorari quashing the order dated 12.1.2022 passed by Respondent no. 1 in Second Appeal no. 2941 of 2021 (Zulfikar Versus Momin and others). b) Issue a writ of mandamus directing the Respondent no. 4 to 13 to not to alienate the land in dispute or change the nature of the land in dispute during the pendency of the Second Appeal no. 2941 of 2021 before Respondent no. 1 and further direct the Respondent no. 1 to decide the Second Appeal no. 2941 of 2021 after receiving the records at the earliest. c) Issue any other writ, order or direction as the Hon'ble Court may deem fit and proper in the aforesaid facts and circumstances of the present case." The aforesaid writ petition was duly entertained and following order was passed by the Coordinate Bench of this Court on 31.03.2022. Order reads as follows:-
Legal Reasoning
"Prima facie, the order passed by the Additional Commissioner (Judicial), Saharanpur Division Saharanpur, does not read like a judgment at all, let alone being a judgment rendered in a regular First Appeal. It does not qualify for any kind of a judgment. It carries in 36 pages of the total of 38, grounds of appeal, raised by the appellant before the Additional Commissioner and the written submissions made on behalf of the appellant. There is then in the concluding pages Nos.37 and 38, cryptic remarks about some order of remand earlier passed by the Board of Revenue from a final judgment of the Court of first instance, about which it is said that it was observed in breach while passing the judgment impugned before the Additional Commissioner. With this short reasoning, the appeal has been allowed and the decree passed by the Court of first instance in the suit under Section 229B has been set aside, reversed and the suit decreed. Ex facie, the judgment passed by the Court of appeal is not worth reading, let alone qualifying as a judgment rendered by an appellate Court. In Second Appeal, the Board of Revenue has refrained from passing orders, even admitting the appeal to hearing or granting any interim orders that the petitioner-appellant has sought. Rather, it has been remarked that it is not necessary to summon the lower Court records. Prima facie, a judgment of the First Appellate Court of the kind that it is, ought to have led to an order of admission of the appeal, straightway with interim orders protecting the parties interest granted. It is the grievance of the petitioner that on subsequent date, that is on 08.02.2022, the appeal has been adjourned requiring service on the respondents. In the meantime, the plaintiff of the suit that has been decreed by the Additional Commissioner has executed sale deeds in favour of third party, taking advantage of inaction on the part of the Board in passing appropriate orders in Second Appeal No.2941 of 2021. This Court is informed that the next date fixed before the Board of Revenue is 05.04.2022. On the said date, the Board shall pass appropriate orders on the motion to admit the appeal to hearing and on the application for stay/injunction. Let notice be issued to respondent Nos. 4 to 66, returnable on 21.04.2022. Steps be taken by 04.04.2022. List in the additional cause list on 21.04.2022. Order on Civil Misc. Stay Application No. 01 of 2022 Issue notice. Till the next date of listing, or till orders are passed by the Board of Revenue on the motion to admit the Second Appeal and the stay matter therein, operation of the judgment and decree dated 30.11.2021, and 01.12.2021, passed by the Additional Commissioner (Judicial), Saharanpur Division, Saharanpur in Appeal No.987 of 2020, Momin and Others Vs. Ikrar and Others, shall remain stayed and no further transfer of the suit property shall be made by any party or their transferees. It is further directed that on or before the next date scheduled, Surendra Ram, Additional Commissioner (Judicial), Saharanpur Division Saharanpur shall submit his comments in answer to the remarks carried in this order about his judgment in the appeal, without fail. Let this order be communicated to Surendra Ram, Additional Commissioner (Judicial), Saharanpur Divisoin Saharanpur, through the Commissioner (Judicial), Saharanpur Division Saharanpur, by the Registrar (Compliance) within 24 hours. " Supplementary affidavit dated 22.04.2022 has been filed by the petitioner. In paragraph-7 of the aforesaid supplementary affidavit it is stated that after the order was passed by this Court in the present writ petition as quoted above, the presiding officer, Board of Revenue U.P., Prayagraj passed an order in the aforesaid second appeal on 12.04.2022. Order reads as follows:- "कततिपय ककारणोሥ ससे ममै इस तቛኌतितीय अपतील ककी ससुनवकाई नहीሻ करनका चकाहतिती हहूሺ। अतितः ्ቚकरण ककी ससुनवकाई हसेतिसु पतकावलती तकसती अन्य न्यकायकालय मम स्थकानकााሪतिररति तकए जकानसे हसेतिसु पतकावलती मका० अध्य्ቌ रकाजस्व पररषदद , उ० ्ቚ०, लखनऊ कसे सम्ቌ ्ቚस्तिसुति ककी जकाए।" From perusal of the same, it is admitted between the parties that the matter is still pending consideration before the Board of Revenue, U.P. at Prayagraj. Counsel for the parties are ready for the early final disposal of the second appeal. Heard counsel for the parties and perused the record. With the consent of counsel for the parties, the present petition is disposed of finally permitting the Board of Revenue, U.P., Prayagraj to decide the aforesaid second appeal, expeditiously and without granting unnecessary adjournment to either of the parties. It is made clear that till the time the second appeal is decided, the Board of Revenue shall not be influenced by observations as made by this Court vide order dated 31.03.2021 on merits while adjudicating upon rights of the parties. Order Date :- 12.5.2022 Swati Digitally signed by SWATI PATHAK Date: 2022.05.16 10:18:16 IST Reason: Location: High Court of Judicature at Allahabad