High Court
Case Details
Court No. - 3 Case :- WRIT - C No. - 33496 of 2022 Petitioner :- Dharmveer Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Vinod Kumar Upadhyay,Santosh Kumar Upadhyay Counsel for Respondent :- C.S.C.,Kaushal Kishore Mani,Saurabh Kumar Hon'ble Surya Prakash Kesarwani,J. Hon'ble Jayant Banerji,J.
Legal Reasoning
Heard Shri Vinod Kumar Upadhyay, learned counsel for the petitioner, Shri Avnish Shukla, learned Additional Chief Standing Counsel for respondent nos. 1 to 4 and Shri Kaushal Kishore Mani for respondent no.5. This writ petition has been filed praying for the following relief/s: "I) Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 18.03.2022 passed by respondent no.2. II) Issue a writ, order or direction in the nature of mandamus commanding and directing the respondent no. 3 and 4 not to interfere in construction of petitioner's house over khasra no. 582." In compliance to the order dated 19.12.2022, the respondent no. 2 i.e., District Magistrate, Saharanpur has filed his personal affidavit. In paragraph nos. 4, 5, 6, 7 and 8 of his personal affidavit, the District Magistrate, Saharanpur has stated as under: "4. That it is stated that Ashok Kumar resident of Village Tikraul has filed an application before the District Magistrate Saharanpur on 18.03.2022 stating therein that illegal construction is being made over the gata no. 582, which is public utility land of Khalihan and requested for stopping the same immediately. On the said application, the District Magistrate Saharanpur vide order dated 18.03.2022 directed the Sub Divisional Magistrate Rampur Maniharan and Station House Officer, Nanauta to submit the reply and stop the construction to avoid any unwarranted law and order situation which was likely to be arise. 5. That it is stated that the report dated 15.06.2022 of Sub Divisional Magistrate Rampur Maniharan is based on the report of Tehsildar, Rampur Maniharan dated 03.06.2022. In the said report, it is mentioned that against the order dated 27.04.1996 passed under Section 9A(2) and the order dated 07.08.2000 passed under Section 109(A) by the Consolidation Officer, the appeal has been preferred before the Settlement Officer of Consolidation and the Settlement Officer of Consolidation vide order dated 24.03.2022 has stayed the effect and operation of the orders dated 27.04.1996 and 07.08.2020 (Annexure nos. 3 and 4 to the writ petition) passed by the Consolidation Officer. After perusal of the enquiry report, the deponent has not passed any order dated 17.06.2022. Copy of the enquiry report dated 15.06.2022 is being filed herewith as Annexure No.1 to this affidavit. 6. That, against the stay order dated 24.03.2022 passed by the Settlement Officer of Consolidation, the petitioner has filed two separate revision nos. 05/2022 and 06/2022 before the Deputy Director of Consolidation. The Deputy Director of Consolidation after considering the facts and circumstances and material available on record dismissed the aforesaid revisions filed by the petitioner vide order dated 5.8.2022 being not maintainable. Copy of the order dated 05.08.2022 is being filed herewith as Annexure No.2 to this affidavit.
Decision
7. That against the order dated 05.08.2022 passed by the Deputy Director of Consolidation in revision no. 06/2022, the petitioner Dharmveer filed writ petition no. 2298/2022 (Dharmveer Vs. State of U.P. and others) before this Hon'ble Court, in which the order dated 11.10.2022 (Annexure no.8 to the writ petition) was passed, staying the effect and operation of the order dated 24.3.2022 passed by the Settlement Officer of Consolidation. 8. That the deponent has not acted beyond his rights and just to resolve any immediate controversy or situation of law and order which may cause any serious complications if arises in the area, the deponent has passed such order. It is utmost pertinent to resolve the controversy at the moment which was demanded by the applicant Ashok Kumar acting on which the deponent has passed the order without getting the proper report which was submitted later to him and as such, the present controversy has become more wider for which the deponent has grave distress and at a low ebb." From the facts admitted by the District Magistrate, Saharanpur in the aforequoted paragraphs of his personal affidavit, it is evident that as on the date of passing the impugned order i.e., 18.03.2022, the order dated 27.04.1996 passed by the Consolidation Officer and the order for Amaldaramad dated 07.08.2020 were operating and there was no interim order passed by any statutory authority. The District Magistrate was having no authority to pass the impugned order. The explanation given by him in his aforesaid personal affidavit for passing the impugned order dated 18.03.2022 is totally misleading, particularly, when the party aggrieved with the aforesaid two orders dated 27.04.1996 and 07.08.2020 had already preferred an appeal on 16.03.2022 before the Settlement Officer, Consolidation, Saharanpur being Appeal No. 151 of 2022 (Ashok Kumar Vs. Dharmveer and others) under Section 11(1) of U.P. Consolidation of Holdings Act, 1953. The private respondent no.4 in his application on which the impugned order dated 18.03.2022 was passed, himself had stated that he had filed appeal before the Settlement Officer, Consolidation, Saharanpur. Therefore, neither there was any occasion for the District Magistrate, Saharanpur to pass the impugned order staying the construction nor he was having any authority under the U.P. Consolidation of Holdings Act, 1953 to pass such order, particularly, when a statutory appeal was pending and no interim order was operating. In paragraph no.8 of his personal affidavit, the District Magistrate, Saharanpur has stated that just to resolve the immediate controversy of situation of law and order, he had passed the impugned order. We find that the explanation submitted by the respondent no.2 is totally frivolous, inasmuch as to prevent the law and order problem, powers under Section 145 Cr.P.C. is given, which could have been exercised if actually there existed such circumstances to exercise that power. He had not exercised the powers under Section 145 Cr.P.C. and simply passed two line order on mere application of the respondent no.6 for the reasons best known to him. In view of the aforesaid, the impugned order dated 18.03.2022 passed by the respondent no.2 is hereby quashed. The writ petition is allowed, with cost of Rs.5,000/- (Rupees Five Thousand), which shall be paid by respondent no.2 by an account payee bank draft to the petitioner within two weeks from today. Learned standing counsel shall inform the respondent No.2 within 3 days about this order for compliance. Order Date :- 11.1.2023 Ankit. Digitally signed by :- ANKIT VISHWAKARMA High Court of Judicature at Allahabad