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2017 DIGILAW 1496 (ALL)

MOHD. MOHSIN KHAN v. STATE OF U. P.

2017-06-06

RAN VIJAI SINGH

body2017
JUDGMENT Hon’ble Ran Vijai Singh, J.—Heard Sri Indra Bhan Singh, learned counsel for the petitioners and the learned Standing Counsel appearing for the State-respondents. 2. Through this writ petition the petitioner has prayed for issuing a writ of certiorari quashing the order dated 25.5.2017 passed by the Commissioner Basti Division, Basti to the extent of rejection of stay application. 3. The facts of the case in brief are that against the petitioners, who happens to be ex-Pradhan and Gram Vikas Adhikari, respectively, an order under Section 27 of the U.P. Panchayat Raj Act, 1947 (hereinafter referred to as the Act) was passed on 31.12.2015 for recovery of Rs. 1,87,797/- as arrears of land revenue. Aggrieved by the aforesaid order the petitioners herein have filed Civil Misc. Writ Petition No. 13064 of 2017 (Mohd. Mohsin v. State of U.P. and others). The aforesaid writ petition was disposed of on 29.3.2017 with the direction to avail the remedy of appeal. Pursuant to the aforesaid order, the petitioners, herein, have preferred an appeal before the Divisional Commissioner, Basti. The Divisional Commissioner, Basti although admitted the appeal, but rejected the stay application vide order dated 25.5.2017. 4. Learned standing counsel appearing for the State respondents submitted that in view of the fact appeal under Sub-section (3) of Section 27 of the Act can be filed within 30 days from the date of the order and since the appeal was barred by time, therefore, the petitioners were not entitled for interim relief. 5. I have gone through the impugned order dated 25.5.2017. From the perusal of the same it transpires that the appeal has been admitted meaning thereby the delay, if any, has been condoned. So far as rejection of the application for interim protection is concerned, the order passed by the Divisional Commissioner, Basti suffers from non consideration of the proviso (1) of Rule 259 of the U.P. Panchayat Raj Rules, 1947 (hereinafter referred to as the Rules), which reads as under: “259. So far as rejection of the application for interim protection is concerned, the order passed by the Divisional Commissioner, Basti suffers from non consideration of the proviso (1) of Rule 259 of the U.P. Panchayat Raj Rules, 1947 (hereinafter referred to as the Rules), which reads as under: “259. (1) A Pradhan, Up-pradhan, Member, Officer or servant of a Gaon Panchayat who has bee surcharged, shall pay the amount of surcharge within three months from the date of communication to him of the order of surcharge passed by the District Magistrate or the District Panchayat Raj Officer, as the case may be: Provided that when an appeal has been preferred under Rule 258 against the order of surcharge passed by the District Magistrate or the District Panchayat Raj Officer, all proceedings for recovery of the surcharge from the persons who have preferred the appeal shall be stayed until the appeal has been finally decided. (2) If the amount of surcharge is not paid within the period specified in sub-rule (1) it shall be recovered as arrears of land revenue.” 6. In view of the aforesaid proviso, till the appeal is decided all the proceedings of recovery of the surcharge from the persons who have preferred the appeal cannot proceed, therefore, I am of the considered opinion that the Divisional Commissioner has erred in rejecting the petitioner’s stay application. 7. In the result the writ petition succeeds and is allowed. The order to the extent by which the petitioner’s stay application has been rejected is quashed. It is further observed that in view of Rule 259 (1) of the Rules there shall be no recovery of the amount against the petitioners pursuant to the order dated 31.12.2015 till the appeal is finally decided.