High Court
Case Details
Neutral Citation No. - 2023:AHC:120496 Court No. - 18 Case :- WRIT - B No. - 1321 of 2023 Petitioner :- Raj Narain And Another Respondent :- Deputy Director Of Consolidation And 22 Others Counsel for Petitioner :- Vinod Kumar Rai Counsel for Respondent :- CSC,Anoop Singh,Arunendra Kumar Singh,Kumar Kartikeya,Shresth Pratap Singh Hon'ble Chandra Kumar Rai,J. 1. On 10.4.2023, following order was order was passed by this Court:- "Learned counsel for the petitioners submitted that appellate court while allowing the restoration application and restoring the earlier restoration application on its original number has granted interim order which is wholly illegal. He further submitted that during pendency of the restoration application, no interim order can be granted. He submitted that appeal under Section 11(i) of U.P.C.H. Act was dismissed long back on 07.11.2003. He submitted that revision filed by the petitioners have also been dismissed without considering the points set up in the revision.
Legal Reasoning
On the other hand, Mr. Kumar Kartikeya, advocate counsel appearing on behalf of respondent no. 4 submitted that order passed by the Settlement Officer, Consolidation, Chandauli is interlocutory in nature as such, the revision was not maintainable. He submitted that by interim order, both parties have been restrained from raising a construction and from transferring the property in dispute as such the order will not effect the interest of petitioner in any manner. Learned counsel for the petitioners submitted that during pendency of the restoration application, no interim order can be granted unless the restoration application is allowed and main proceeding is restored to its original number. Matter requires consideration. Learned counsel for the respondent no. 4 submitted that he shall obtain necessary instruction from other private respondents so that the matter may be disposed of finally. Put up this matter as fresh on 26.04.2023." 2. Again on 26.4.2023, the matter was heard and following order was passed:- "Mr. Kumar Kartikeya, Counsel for respondent No.4.prays for and is granted further time to obtain instructions from other private respondents. Put up this matter as fresh on 22nd May, 2023. Till the next date of listing, effect and operation of the order dated 25.02.2022 passed by Settlement Officer of Consolidation, Chandauli by which interim protection has been granted to the effect that no 3rd party interest shall be created in respect of disputed plot and no construction shall be made, shall remain stayed." 3. The aforementioned order dated 26.4.2023 was further extended by this Court vide order dated 22.5.2023. 4. Mr. Arunendra Kumar Singh and Mr. Kumar Kartikeya have filed vakalatnama on behalf of the contesting respondent nos. 4 to 19. Mr. Anoop Singh has also filed vakalatnama on behalf of respondent nos. 20 to 23. 5. With the consent of the parties, the matter is being heard and disposed of finally without calling for any counter affidavit. 6. Mr. Vinod Kumar Rai, counsel for the petitioner submitted that while allowing the restoration application and restoring the earlier restoration application to its original number, an interim order has been granted which is illegal. He further submitted that unless the original restoration application is allowed and the main case is restored, there is no question of granting interim order in the restoration proceeding. He also submitted that restoration applications are time barred also, as such, the grant of interim order is illegal. 7. On the other hand, Mr. Kumar Kartikeya submitted that vide imupgned order only the restoration application on payment of cost of Rs.500/- has been allowed and it has been further directed that the disputed land be not sold and no construction be raised on the spot, as such, no interference is required in the matter. He also submitted that the disputed property should remain intact during the pendency of the proceeding, otherwise the entire proceeding will become infructuous. He further submitted that during the pendency of the proceeding, the petitioners have mortgaged the property in dispute, as such, the interim protection which was granted by the Settlement Officer Consolidation, was in the interest of justice as well as in accordance with law. He further submitted that the writ petition is not maintainable against the order, allowing restoration application, as such, the same is liable to be dismissed. 8. In reply, counsel for the petitioners submitted that since the original proceeding has not been restored, as such, there was no occasion to grant interim order unless the main proceedings are restored. He also submitted that grant of interim order during the pendency of the restoration proceeding, is illegal. He also submitted that under the impugned order, the earlier restoration application has been restored. 9. I have considered the arguments advanced by learned counsel for the parties and perused the records. 10. There is no dispute about the fact that vide impugned order dated 25.2.2022, the restoration application filed by the contesting respondent has been allowed on payment of cost of Rs.500/- and the earlier restoration application which was dismissed for non-prosecution, has been restored for consideration. There is also no dispute about the fact that while allowing restoration application vide impugned order and restoring the earlier restoration application, the interim order has been granted by the Settlement Officer Consolidation. 11. The law is well settled unless the restoration applications are allowed, no interim order can be granted during the pendency of the restoration proceeding. 12. In the present matter, the Settlement Officer Consolidation has allowed the restoration application, setting aside the order by which the earlier restoration was dismissed in default, as such, under the impugned order the earlier restoration application will be restored in the matter, so there was no occasion to grant interim order in the matter. 13. Considering the facts and circumstances, the part of the impugned order dated 25.2.2022 passed by the Settlement Officer Consolidation, Chandauli by which the interim protection has been granted for not executing the sale deed as well as restraining the parties from raising construction, is hereby set aside.
Decision
14. The writ petition is allowed in part. It is directed that the Settlement Officer Consolidation shall decide the matter of the restoration proceeding in pursuance of the order dated 25.2.2022, in accordance with law, expeditiously. Order Date :- 30.5.2023 C.Prakash Digitally signed by :- CHANDRA PRAKASH High Court of Judicature at Allahabad