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2007 DIGILAW 236 (PAT)

Harigend Choubey v. State

2007-02-02

NAVANITI PRASAD SINGH

body2007
Judgment 1. Heard. 2. State has filed a counter affidavit and the private respondents pursuant to notice issued have also appeared and filed a counter affidavit. 3. Heard the parties and with their consent this application is being disposed of at the admission stage itself. 4. It appears that a proceeding for pre-emption of sale of land was initiated against the petitioners, who were the purchasers. The petitioners appear to have lost in the proceedings right upto Member Board of Revenue. The pre-emptor having deposited the consideration plus ten percent sought delivery of possession of the land even though by then no sale deed in his favour was executed either by the transferor or by the State. Respondent-D.C.L.R., Gopalganj, then passed an order on 7.8.2000 directing delivery of possesion of property to the private-respondents. This was objected to by the petitioners, who were the transferees by filing a Writ application being C.W.J.C. No. 7332/2000 before this Court. By order dated 10.8.2000 passed in the said Writ application the order of DCLR dated 7.7.2000 was stayed. In the said proceedings the pre-emptor i.e. private-respondents herein had also appeared and had been heard and the stay was granted. Ultimately the said writ application was admitted for final hearing by order dated 15.3.2001 and the interim order passed on 10.8.2000 was directed to continue. The effect of these orders was that the order of DCLR for delivering possession to the pre-emptor, the private respondents herein, was stayed and could not have been acted upon. It appears that in the meantime the pre-emptor were delivered possession. This was objected to by the petitioners on basis of interim order of this court. DCLR after considering the entire matter, by his order dated 21.3.2001, ordered that the possession be restored in view of the stay granted by this court. He accordingly directed that the petitioners be put back in possession as if he had not passed the earlier order dated 7.8.2000 which had been stayed by this court. This order of D.C.L.R. restoring the possession to the petitioners was challenged by the pre-emptor before this court in C.W.J.C. No. 4464 of 2001, which was dismissed as withdrawn by order dated 9.4.2001 giving liberty to the petitioners to file appropriate interlocutory application in the earlier writ application which had been admitted on 15.3.2001 and was pending. This order of D.C.L.R. restoring the possession to the petitioners was challenged by the pre-emptor before this court in C.W.J.C. No. 4464 of 2001, which was dismissed as withdrawn by order dated 9.4.2001 giving liberty to the petitioners to file appropriate interlocutory application in the earlier writ application which had been admitted on 15.3.2001 and was pending. It is stated at the Bar that an interlocutory application for vacating the stay order was filed in view of earlier writ application but it was not pressed for sometime. In the meantime, the private respondents (pre-emptor) also moved the Collector by filing an appeal against the order dated 21.3.2001 of the DCLR. which order they had earlier challenged in the second writ application. The Collector by the impugned order dated 9.10.2001 has set aside the order dated 21.3.2001 of DCLR on the ground that pursuant to his earlier order dated 7.8.2000 as possession had been given to the pre-emptor then till final orders of this court in the writ application first filed status quo should be maintained. He accordingly set aside the order dated 21.3.2001 of D.C.L.R. which was an order implementing and/or consequential to the order of this Court in the first writ application. 5. Learned counsel for the petitioners submits that the order of the Collector is virtually contemptuous inasmuch as he has directly interfered in the interim order of this Court passed in the first writ application. The Collector has granted a relief to the pre-emptors- private respondents which they had failed to get from this court and for which they had to move an interlocutory application in this court in the first writ application. 6. To the query of the Court as to the fate of the interlocutory application in the first writ application, the counsel for private-respondents (pre-emptor) submitted that as the Collector by then passed favourable order they withdrew the interlocutory application. He further submits that if the order of the Collector is qushed by this Court then that would leave him remedyless his interlocutory application he withdrew on basis of order of the Collector and the order of the Collector is being quashed. To this my simple answer is that it was a conscious decision taken by the respondents choosing their forum and their reliefs having partially succeeded they have now fully failed. This situation cannot be held to be justified in the writ jurisdiction. To this my simple answer is that it was a conscious decision taken by the respondents choosing their forum and their reliefs having partially succeeded they have now fully failed. This situation cannot be held to be justified in the writ jurisdiction. 7. Having considered the submissions, in view of the facts noted above it is apparent that this court having knowledge of possession having been delivered had stayed the order delivering possession. The effect was that there was no order delivering possession and consequentially no further proceeding in that respect. DCLR, therefore was correct in his order dated 21.3.2001 to restore the status as emanating on the date he has passed the order delivering possession. In that view of the matter any interference by any authority in the said order would have been contemptuous as has been done by the Collector. It is an order which is wholly without jurisdiction uncalled for and verging on contempts, the order of the Collector dated 9.10.2001 is quashed. 8. The counsel for the private-respondents has raised a question of maintainability of this writ application. To my mind this is misconceived. It is submitted that no independent writ application would lie to challenge the order of the Collector dated 9.10.2001. To my mind the order dated 9.10.2001 is an order independent of other proceedings. It has been passed to overcome the order passed in another writ application. It is an independent cause of action to the petitioners and they rightfully challenged separately. The objection has been noted only to be rejected. 9. This writ application is allowed leaving the parties to other remedy as they may avail of.