# Salik Ram & Ors v. State of U.P. & Ors

- **Citation:** (2014) 2 ILRA 847
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-07-21
- **Case number:** Civil Misc. Writ Petition No. 34216 of 2014
- **Bench:** Ran Vijai Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/salik-ram-ors-v-state-of-u-p-ors-42992
- **Pages:** 5

## Headnote

Constitution of India-Art.-226-Appeal against
judgment passed under 229-B-with delay
condonation application filed-unless delay
condoned-in eye of law no appeal pendingcommissioner not only misinterpreted the
judgment but acted against settled principle
of law-moreover when final relief can not be
granted-no question of interim order-order
continuing interim order till disposal of
appeal-set-a-side.

Held: Para-13
Therefore, in my considered opinion, the
learned Additional Commissioner has not
only mis-interpreted the judgment of
this Court but also ignored the settled
principle of law that unless delay is
condoned there can be no appeal or
revision, therefore no interim order could
be passed in view of the provisions
contained in Order 41, Rule 3A(3) of the
Code of Civil Procedure, which provides
that the Court shall not make an order
for the stay of execution of the decree
against which the appeal is proposed to
be filed so long as the Court does not,
after hearing under rule 11, decide to
hear the appeal.

Case Law discussed:
2008 14 SCC 445; (2012(8) ADJ 210).

## Text

2 All]. Salik Ram & Ors. Vs. State of U.P. & Ors.
847
Another Vs. Director Of Education
(Basic) U.P., Allahabad And Others, 2012
(6) ADJ 246.

16. Otherwise also, the subsequent
proceeding was barred by principle of
resjudicata. In view of foregoing discussions,
no relief can be granted to the petitioner. The
writ petition is misconceived and it is hereby
dismissed. Since the petitioner has abused the
process of the court for the last ten years and
also committed fraud upon the Court, a cost of
Rs. 25,000/- is imposed upon the petitioner,
which is recoverable as arrears of land
revenue. The petitioner is directed to deposit
the aforesaid amount before the Collector
Hapur within a period of six months from
today. In case, cost is not deposited within the
aforesaid period of six months, the Collector
shall realize the same as arrears of land
revenue. Learned Standing Counsel is
directed to send certified copy of this
judgment to the Collector Hapur forthwith.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.07.2014

BEFORE
THE HON'BLE RAN VIJAI SINGH, J.

Civil Misc. Writ Petition No. 34216 of 2014

Salik Ram & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Piyush Kan Vishwakarma

Counsel for the Respondents:
C.S.C., Sri Ram Asrey Yadav, Sri Rajesh
Kushwaha, Sri M.K. Yadav.

Constitution of India-Art.-226-Appeal against
judgment passed under 229-B-with delay
condonation application filed-unless delay
condoned-in eye of law no appeal pendingcommissioner not only misinterpreted the
judgment but acted against settled principle
of law-moreover when final relief can not be
granted-no question of interim order-order
continuing interim order till disposal of
appeal-set-a-side.

Held: Para-13
Therefore, in my considered opinion, the
learned Additional Commissioner has not
only mis-interpreted the judgment of
this Court but also ignored the settled
principle of law that unless delay is
condoned there can be no appeal or
revision, therefore no interim order could
be passed in view of the provisions
contained in Order 41, Rule 3A(3) of the
Code of Civil Procedure, which provides
that the Court shall not make an order
for the stay of execution of the decree
against which the appeal is proposed to
be filed so long as the Court does not,
after hearing under rule 11, decide to
hear the appeal.

Case Law discussed:
2008 14 SCC 445; (2012(8) ADJ 210).

(Delivered by Hon'ble Ran Vijai Singh, J.)

1. Learned counsel for the petitioners
is directed to implead the concerned Gaon
Sabha during the course of the day and serve
a copy of the writ petition upon the learned
counsel appearing for the Gaon Sabha.

2. Heard Sri P.K.Vishwakarma,
learned counsel for the petitioner, Sri
C.S.Singh,
learned
Additional
Chief
Standing Counsel appearing for the Staterespondents, Sri R.A.Yadav, learned
counsel appearing for the caveator, Sri
Rajesh Kushwaha, learned counsel for the
respondent no.3 and Sri M.K.Yadav,
learned counsel for the Gaon Sabha.

3. Through this writ petition the
petitioner has prayed for issuing a writ of
848 INDIAN LAW REPORTS ALLAHABAD SERIES
certiorari
quashing
the
order
dated
20.3.2014 passed by respondent no.2 in
Appeal No. 21 of 2013 (Sanjay and others
vs. Salik Ram and others) by which the
delay in filing the appeal has been
condoned and the earlier interim order
dated 22.8.2013 for maintaining status
quo has been made operative till the
pendency of the appeal.

4. The facts giving rise to the present
case are that respondent nos. 3 and 4, Sanjay
and Rajmani have filed Suit No. 98/127
(Rajmani and others vs. Muniraj and others)
under section 229-B of the U.P. Zamindari
Abolition and Land Reforms Act, 1950 (for
short the Act) before the Sub Divisional
Officer Jaunpur. The aforesaid suit was
dismissed vide judgment and order dated
20.6.2011 holding it to be not maintainable
being barred by section 49 of the U.P.
Consolidation of Holdings Act, 1953.
Against the aforesaid judgment a review
application was filed which was allowed on
27.4.2012. Challenging this order a revision
was filed which was numbered as Revision
No. 111 of 2012 (Smt. Patti Devi and others
vs. Rajmani and others). The revision was
allowed on 27.8.2013. Thereafter the
respondents have filed an appeal under
section 331 of the Act against the judgment
and decree dated 20.6.2011. The appeal was
barred by time, therefore, the respondents
have filed an application for condonation of
delay. It appears in the appeal without
condoning the delay an order for maintaining
status quo was passed by the Additional
Commissioner on 22.8.2013. Challenging
the aforesaid order a writ petition was
filed by the petitioner before this Court
which was numbered as Writ C No.
67250 of 2013 (Salik Ram and others vs.
State of U.P. and others). The writ
petition was disposed of with the
following observation:

"Even otherwise the suit itself is
barred under Section 49 and therefore
there would be no question of grant of any
final relief much less an interim relief.
(emphasis supplied)

The petitioner will raise all these
objections by way of an affidavit before
the learned Additional Commissioner
himself within 15 days from today and the
learned Additional Commissioner shall
consider these objections and proceed to
pass orders by the next date fixed
positively without fail.

The writ petition is disposed of with
the said observation."

5. Pursuant to the order of this Court
dated 10.12.2013 the petitioner has filed
objection before the court concerned and
the court concerned after condoning the
delay has passed the impugned order in
the writ petition.

6. When the writ petition was
presented, this Court on 7.7.2014 has
passed the following order:

"It appears, against the order dated
22.8.2013 passed in appeal no. 21 of 2013
(Sanjai and Others Vs. Salik Ram and
Others), directing the parties to maintain
status quo, the petitioner approached this
Court through Writ C No. 67250 of 2013
(Salik Ram and Others Vs. State of U.P.
and Others) and on 10.12.2013, this Court
has passed the following order:

"Even otherwise the suit itself is
barred under Section 49 and therefore
there would be no question of grant of any
final relief much less an interim relief.

The petitioner will raise all these
objections by way of an affidavit before
2 All]. Salik Ram & Ors. Vs. State of U.P. & Ors.
849
the learned Additional Commissioner
himself within 15 days from today and the
learned Additional Commissioner shall
consider these objections and proceed to
pass orders by the next date fixed
positively without fail. "

In turn, the petitioners approached
the Additional Commissioner and filed
their objections. Now, by the impugned
order, the Additional Commissioner has
confirmed the earlier order passed by him
on 22.8.2013.

I am surprised to note that when on
previous occasion, the Court in the writ
petition had taken note of this fact that in
case the suit was barred by section 49 of
the Consolidation of Holdings Act, 1953,
there was no occasion to pass any interim
relief, how the Additional Commissioner
could
confirm
the
earlier
order
maintaining status quo.

The Additional Commissioner is
directed to file his personal affidavit
explaining the situation under which the
earlier interim order has been made
absolute till the disposal of the appeal.

As prayed, put up this case on
21.7.2014 as fresh.

On that date, learned Additional
Commissioner (Judicial) 1st, Varanasi
Division, Varanasi shall remain present
before this Court along with the record to
assist the learned standing counsel."

8. Pursuant thereto necessary affidavit
has been filed. I have gone through the
affidavit filed by the respondents.

9. Sri C.S.Singh, learned Additional
Chief Standing counsel contends that in
the judgment dated 10.12.2013 passed by
this Court, the sentence beginning with,
"Even otherwise the suit itself is barred
under Section 49 and therefore there
would be no question of grant of any final
relief much less an interim relief", was not
an observation of the court but it was the
submission of the learned counsel for the
petitioner made before the court and
taking note of that this Court has directed
the petitioner to file objection which was
also directed to be considered. I am not
satisfied with the stand taken by the
learned standing counsel for the simple
reason that the suit itself was dismissed as
barred by section 49 of the U.P.
Consolidation of Holdings Act and the
appeal was also barred by time and the
same was not competent.

10.

The
learned
Additional
Commissioner on the earlier occasion has
granted an interim order for maintaining
status quo without condoning the delay
whereas the appeal was admittedly barred
by time and in that eventuality this Court
was approached through Writ C No.
67250 of 2013 and this Court taking note
of the fact has observed that without there
being any notice to the other side and
without condonation of delay no interim
order could be passed and in this regard
the petitioner was required to file
objection before the appellate Court. It
was further observed that since the suit
itself was barred under Section 49 of the
Consolidation of Holdings Act, 1953
there could be no occasion to grant any
final relief much less an interim relief.

11. Now after the above order the
learned Additional Commissioner has
condoned the delay and maintained the
earlier
interim
order.
So
far
as
condonation of delay is concerned I do
850 INDIAN LAW REPORTS ALLAHABAD SERIES
not find any ground to interfere with the
view taken by the learned Additional
Commissioner as it was positive exercise
of discretion in view of the law down by
the Apex Court in State of Bihar and
others Vs. Kameshwar Singh and others
reported in JT 2000(5) 389 wherein the
Apex Court has observed as under :-

".......... Once the court accepts the
explanation as sufficient, it is the result of
positive
exercise
of
discretion
and
normally the superior court should not
disturb such finding, much less in
revisional jurisdiction, unless the exercise
of discretion was on wholly untenable
grounds or arbitrary or perverse. But it is
a different matter when the first court
refuses to condone the delay. In such
cases, the superior court would be free to
consider the cause shown for the delay
afresh and it is open to such superior court
to come to its own finding even
untrammelled by the conclusion of the
lower court."

12. However, I am of the considered
opinion that the learned Additional
Commissioner has committed manifest
error of law in continuing the earlier
interim order which could not be granted
as unless delay was condoned there could
be no appeal in view of the law laid down
by the Apex Court in Noharlal Verms vs.
District Coopeative Central Bank Ltd.
Jagdalpur, 2008 14 SCC 445 wherein the
Apex Court has held as under:

" 32. Now, limitation goes to the root
of the matter. If a suit, appeal or
application is barred by limitation a court
or an adjudicating authority has no
jurisdiction,
power
or
authority
to
entertain such suit, appeal or application
and to decide it on merits.

13. Following the above judgment,
this Court has also taken the similar view
in Nagar Palika Parishad vs. Raghuraj
Singh Public Inter College and others
(2012 (8) ADJ 210). Otherwise also, even
if it is assumed that it is a fresh interim
order that could also not be passed in
view of the earlier judgment of this Court
rendered in Writ C No. 67250 of 2013.
Therefore, in my considered opinion, the
learned Additional Commissioner has not
only mis-interpreted the judgment of this
Court but also ignored the settled
principle of law that unless delay is
condoned there can be no appeal or
revision, therefore no interim order could
be passed in view of the provisions
contained in Order 41, Rule 3A(3) of the
Code of Civil Procedure, which provides
that the Court shall not make an order for
the stay of execution of the decree against
which the appeal is proposed to be filed
so long as the Court does not, after
hearing under rule 11, decide to hear the
appeal.

14. Therefore, no interim order
could be passed as here the appeal was
not heard under Rule 11, Order 41 of the
Code of Civil Procedure.

15. In the result the writ petition
succeeds and is allowed in part. The
impugned order dated 20.3.2014 passed by
respondent no.2 in Appeal No. 21 of 2013
(Sanjay and others vs. Salik Ram and others)
is quashed to the extent to which it has
directed the continuance of the earlier interim
order till the disposal of the appeal.

16. Since the delay has already been
condoned,
the
learned
Additional
Commissioner is directed to decide the
appeal expeditiously after hearing both
the
parties
without
granting
any
2 All]. Vinod Kumar Gupta Vs. The State of U.P. & Ors.
851
unnecessary adjournment to the learned
counsel for the parties.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.07.2014

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 37999 of 2014

Vinod Kumar Gupta ...Petitioner
Versus
The State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Birendra Singh

Counsel for the Respondents:
C.S.C., Sri Manoj Kumar Yadav, Sri S.C.
Shukla

Constitution
of
India,
Art.-226cancellation of fair prices shop licenseappeal
pending-but
stay
application
rejected-contention of petitioner that in
view of two Division Bench directionauthorities restrained to create third
party interest-hence stay ought to have
granted-held-earlier judgment without
specific issue regarding creation of third
party interest-not binding effect while by
subsequent Division Bench taking view
of fresh allotment of fair price shopbeing interlocutory measure subject to
decision of appeal-in so long appeal
allowed and license restored-petitioner
no right to run the shop-rejection of stay
application held-proper.

Held: Para-8
The exposition of law laid down in
aforesaid
Division
Bench
judgment,
where the issue has been raised, argued
and
decided,
constitute
a
binding
precedent on this Court, with which I
find myself bound.

Case Law discussed:
W.P. No. 19080 of 2008.
(Delivered by Hon'ble Sudhir Agarwal, J.)

1. Heard Sri Birendra Singh, learned
counsel for the petitioner and perused the
record.

2. The only argument advanced in
the writ petition is that during pendency
of appeal of petitioner the fair price shop
cannot be allotted to a third party.

3. It is not in dispute that petitioner had
entered into a contract with respondents for
running fair price shop sometimes in 1990 in
Gram Panchayat Murara, Block Muftiganj,
Tehsil Kerakat, District Jaunpur so as to
distribute essential commodities to card
holders within that area. On the ground of
illegalities and irregularities in distribution of
essential commodities petitioner's fair price
shop agreement was suspended by Deputy
Collector vide order dated 27.12.2013, which
was passed in exercise of powers conferred
under
U.P.
Scheduled
Commodities
(Distribution)
Order,
2004
(hereinafter
referred to as the "Order, 2004").

4. The petitioner preferred Appeal No.
32 of 2014 against aforesaid order of
suspension and appeal was pending. In the
meantime, Deputy Collector completed his
inquiry and after considering petitioner's
reply to show cause notice dated 27.12.2013
passed a final order dated 04.04.2014
cancelling fair price shop agreement of
petitioner. Thereagainst petitioner preferred
Appeal No. 52 of 2014, which is also
pending. In this appeal petitioner filed an
application requesting Appellate Authority
that during pendency of appeal, petitioner's
fair price shop should not be allotted to any
third person but the application has been
rejected by Appellate Authority by impugned
order dated 04.07.2014, hence this writ
petition.