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2012 DIGILAW 192 (UTT)

SAIDA v. ABDUL GAFOOR

2012-05-01

TARUN AGARWALA

body2012
JUDGMENT Hon’ble Tarun Agarwala, J. 1. Heard Mr. Sharad Sharma, the learned senior counsel assisted by Mr. Anirudha Joshi, the learned counsel for the applicant and Mr. A. K. Sharma, the learned counsel alongwith Mr. Rajendra Singh, the learned counsel for the respondent nos.1, 2, 3, 6 & 7 and Mr. Lok Pal Singh, the learned counsel for the respondent nos.4 & 5. 2. The present contempt application has been filed against an interim order of this court dated 10.10.2002 passed in Writ Petition No.732 of 2002 (M/S). For facility, the said order is extracted hereunder: - “Heard. Send for lower court record. Operation of impugned order under challenge in the writ petition shall remain stayed. Order dated 03.10.2002 is mod ified accordingly.” 3. The applicant contends that the opposite parties have willfully disobeyed the interim order by selling the land in question. 4. The facts leading to the filing of the contempt application is, that during consolidation proceedings under Section 9(A)(2) of the Consolidation Act, an objection of the applicant was decided in her favour holding that the land in question belongs to the applicant and that the objection of the respondent nos.1, 2 & 3 alleging that they are the owners of the land in question was rejected. An appeal was filed, which was dismissed and the order of the consolidation authority was affirmed. In revision, the order of the consolidation authority and the order of the Settlement Officer, Consolidation was set aside and the matter was remitted back to the consolidation authority to decide the matter afresh. The applicant, being aggrieved by the order of the revisional authority filed Writ Petition No.732 of 2002 (M/S), in which an interim order dated 10.10.20002 was passed which has been quoted aforesaid. 5. It transpires that respondent nos.1 & 2 thereafter executed a sale deed dated 10.12.2003 transferring the land in question to respondent nos.6 & 7. Based on the said execution of the sale deed, the names of respondent nos.6 & 7 were mutated by the revenue authorities, who are arrayed as respondent nos.4 & 5. When the applicant came to know about the sale deed, she filed the present contempt application contending that there is a violation of the order dated 10.10.2002 passed in Writ Petition No.732 of 2010 (M/S). 6. When the applicant came to know about the sale deed, she filed the present contempt application contending that there is a violation of the order dated 10.10.2002 passed in Writ Petition No.732 of 2010 (M/S). 6. The contention of learned senior counsel for the applicant is, that once the impugned order under challenge was stayed by an order of the writ court i.e. the effect of the revisional order being stayed by the High Court, the order of the trial court and the order of the consolidation officer revives and takes effect. The learned counsel for the applicant submitted that the consolidation officer has settled her right declaring the applicant to be the owner of the land in question and since that order survives, the land in question could not have been sold by opposite party nos.1 & 2 in favour of the opposite party nos.6 & 7. Consequently, the opposite parties have committed willful disobedience of the interim order of the writ court and are liable to be punished for contempt. 7. This court, by an order dated 13.03.2012, had directed the respondent nos.1, 2, 3, 6 & 7 to file reply as to why formal charges should not be framed against them for committing contempt of the court and they were directed to be present in person before the court on 28.03.2012. On 28.03.2012, the personal presence of respondent nos.2 & 3 was exempted and they were required to be present on 01.05.2012. Today, the opposite parties nos.1, 6 & 7 are present in court and, on behalf of respondent no.2 an oral prayer was made by the opposite party no.1 that his son respondent no.2 is not well and is unable to appear in the court. So far as the respondent no.3 is concerned, she has not appeared today. It was informed by the learned counsel for the opposite parties that she is about 87 years of old and is unable to travel from Roorkee to Nainital. 8. Upon proceeding with the matter, the court finds that opposite party no.3 has nothing to do with the present dispute since she has not sold the property to respondent nos.6 & 7 and, therefore, no contempt whatsoever is made out for violation of the interim order of the court. 8. Upon proceeding with the matter, the court finds that opposite party no.3 has nothing to do with the present dispute since she has not sold the property to respondent nos.6 & 7 and, therefore, no contempt whatsoever is made out for violation of the interim order of the court. Consequently, at this stage, the court discharges the notices against respondent no.3 and dismisses the contempt application in so far as it relates to opposite party no.3. 9. In Shree Chamundi Mopeds Ltd. Vs. Church of South India Trust Association, CSI CINOD Secretariat, Madras 1992 (3) SCC 1, the Supreme Court considered the effect of an interim order staying the operation of the order under challenge vis-à-vis the effect of the quashing of an order. The Supreme Court held as under : “While considering the effect of an interim order staying the operation of the order under challenge, a distinction has to be made between quashing of an order and stay of operation of an order Quashing of an order results in the restoration of the position as it stood on the date of the passing of the order which has been quashed. The stay of operation of an order does not, however, lead to such a result. It only means that the order which has been stayed would not be operative from the date of the passing of the stay order and it does not mean that the said order has been wiped out from existence. This means that if an order passed by the Appellate Authority is quashed and the matter is remanded, the result would be that the appeal which had been disposed of by the said order of the Appellate Authority would be restored and it can be said to be pending before the Appellate Authority after the quashing of the order of the Appellate Authority. The same cannot be said with regard to an order staying the operation of the order of the Appellate Authority because in spite of the said order, the order of the Appellate Authority continues to exist in law so long as it exists, it cannot be said that the appeal which has been disposed of by the said order has not been disposed of and is still pending.” 10. The Supreme Court held that the stay of operation of an order only means that the order which has been stayed would not be operative but it does not mean that the said order has been wiped out from existence. In the light of the aforesaid, the revisional order has set aside the order of the consolidation officer by which the rights of the applicant had matured. Until and unless the order of the revisional court is quashed, the order of the consolidation officer does not revive on the mere stay of the order of the revisional authority. The mere fact that the order of the revisional order has been stayed does not mean that the order of the consolidation officer revives. The effect of the interim order of the court is only to the effect that the revisional order has been kept in abeyance. Consequently, until and unless the order of the revisional authority is quashed or set aside, the order of the consolidation officer does not revive. 11. In the light of the aforesaid, the submission of the learned senior counsel for the applicant that the applicant’s right, which had matured pursuant to the order of the consolidation officer, revives upon the staying of the effect of the order of the revisional authority is patently erroneous. Consequently, the execution of the sale deed by opposite party nos.1 & 2 in favour of opposite party nos.6 & 7 does not in the opinion of the court violate the interim order dated 10.10.2002. Consequently, the contempt application is dismissed and notices are discharged. The personal presence of the opposite parties are dispensed with.