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Joti Das v. State Of U.P. & Others - WRIT - C No. 14622 of 2007 [2007] RD-AH 4768 (19 March 2007)


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Civil Misc. Writ Petition   No.   14622  of  2007

Joti Das ..................................................................................    Petitioner


State of Uttar Pradesh & others   ...............................          Respondents


Hon'ble Ashok Bhushan, J.

Heard counsel for the petitioner  and the learned counsel appearing for the respondents.

By this writ petition  the petitioner has prayed for quashing the order dated 22.2.2007 passed by the Commissioner by which the Commissioner has rejected the stay application and admitted the appeal and has also summoned the record for 23.4.2007.  Learned counsel for the petitioner contended that the appellate authority in the impugned order  took the view that without looking to the lower court's record there is no  justification for interference by way of stay.   He submits that in view of the aforesaid observation it was not necessary to reject the application  and the stay application could have been remained pending and decided after the records were received.  Learned counsel for the respondents contends that the order was only interlocutory  which needs no interference by this Court Under Article 226 of the Constitution.

I have considered the submissions of counsel for the parties and perused the record.

The appellate authority in the order has observed that without looking to the record of the lower court no interim order can be granted which may have affect of interference  with the impugned order.  No exception can be taken  of the said observation.  It was open for the Commissioner  to come to the conclusion that the stay cannot be granted without looking  into the record.  However, the proper course  in view of the said observation  was to keep   the application pending and decide the same after the records were received.  Thus the order of the Commissioner rejecting the  stay application  merely on the said ground, is erroneous.  The stay application  having been finally rejected on erroneous ground, a case has been made out for interference by this Court .  In view of above, the order dated 22.2.2007 in so far as it rejects the stay application,  is set aside. The stay application of the petitioner shall revive and be considered after the records are received in accordance with law.  It is made clear that  this Court is not expressing any opinion  on merits of the stay application and it is for the appellate authority to consider and take appropriate decision in the matter in accordance with law.

The writ petition  is accordingly disposed of.




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