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1983 DIGILAW 908 (ALL)

Shyam Saran v. Chandrakali

1983-11-30

KAUSHAL KISHORE

body1983
JUDGMENT Kaushal Kishore, Member. - This revision petition arises out of the order of appointment of receiver by the learned trial court passed on March 25, 1975 in a suit under Section 229-B of the U.P.Z.A. and L.R. Act when the proceedings had already been stayed by the collector on March 24, 1975 in connection with a transfer application. 2. I have heard the learned counsel for the parties and have also perused the record. 3. The learned trial court inspite of objection, held the order of the Collector dated March 24, 1975 a nullity and appointed a receiver on the request of the commissioner, Faizabad Division, Faizabad held the trial court's order improper and illegal and set aside the order. This appellate court order dated March 22, 1980 gave rise to the present revision. The application for appointment of receiver was made on March 4, 1975 and no objection on merits was field but the proposed appointment was opposed on the ground of jurisdiction in view of the stay only by the collector. 4. The question involved is whether the Collector had power to stay the proceedings. The argument that only Commissioner being the first appellant court could transfer the case or pass the stay order, is not acceptable in view of Section 227 to 282 of the U.P. Tenancy Act being made applicable by Rule 339(1) of the U.P.Z.A. and L.R. Rules which Sections 281 and 282 provide jurisdiction to the Collector. The repeal of the U.P. Tenancy Act under Section 339(a) of the U.P.Z.A. and L.R. Act is not absolute; three is a proviso that where under the U.P.Z.A. and L.R. Act is not absolute; there is a proviso that where under the U.P.Z.A. and L.R. Act any action is to be take in accordance with the the provisions of the U.P. Tenancy Act, it would be done as it not repealed. The language of rule 339(1) makes it still more clear for in the U.P.Z.A. and L.R. Act, there is nothing expressly against the provisions is Section 281 and 282 of the U.P. Tenancy Act. Therefore, I find no illegality or material irregularity in the exercise of the jurisdiction by the learned Additional Commissioner in passing the order dated March 22, 1980 and this revision petition must be held to be without force. 5. Therefore, I find no illegality or material irregularity in the exercise of the jurisdiction by the learned Additional Commissioner in passing the order dated March 22, 1980 and this revision petition must be held to be without force. 5. However, one observations appears necessary, that the appointment of receiver had not been set aside on merits. The transfer application before the Collector is no longer pending as would be obvious by the learned trial court's order on October 4, 1978 to call both the parties for hearing on November 3, 1978, passed on receipt of the Board's order dated January 25, 1978 in another revision petition before them, directing the trial court to decide issue number 4 as a preliminary issue. Since the order of the trial court dated March 25, 1975 being without jurisdiction due to stay order, was set aside in the first appeal, the application dated March 4, 1975 is still pending and the learned trial court should consider it and pass orders after hearing the parties in accordance with law, in view of no stay order by the Collector being operative now. 6. With the above observations, the revision petition is hereby dismissed.