A.P. Sahi, J. - (1.) 1. The petitioners are aggrieved by the order of the Commissioner, Chitrakoot Dham Mandal, Banda dated 16.5.2008 whereby the learned Commissioner has refused to grant any interim relief to the petitioners in the proceedings of appeal pending before him under the U.P. Imposition of Ceiling on Land Holdings Act, 1960. The same is questioned on the ground that it is the statutory right of the petitioners to file an appeal and once the appeal had been admitted, then the Commissioner ought to have granted an interim order in order to protect the interest of the parties during the pendency of the appeal.
(2.) FOR the purpose of consideration of grant of interim relief, the settled principles of prima facie case, balance of convenience and irreparable injury has to be kept in mind before passing an order either refusing or granting an Interim order. The purpose of an interim order is to preserve the state of affairs so as to avoid any prejudice to the parties during the pendency of the litigation. The balance of convenience and the likelihood of injury has to be assessed. Sri Chaudhary N.A. Khan learned Counsel for the petitioners contends that not only this, the entire proceedings which have been under taken by the ceiling authorities pursuant to the order of this Court dated 15.5.2006, are not in correct perspective inasmuch as, once the family settlement on the basis whereof the transfer in the year 1959 had been accepted by the appellate authority on 27.9.77, then there was no occasion for the authorities to have invoked the provisions of Section 38-B of the Act 1961 on the same issues more so when the State did not choose to file any writ petition questioning the order of the appellate authority dated 27.9.77. Learned Standing Counsel on the other hand contends that it is on account of the directions issued by this Court that the matter was taken up by the Prescribed Authority and he has proceeded to decide the issue in accordance with law. It is undisputed that against the order of the Prescribed Authority, the petitioners preferred the appeal in which the learned Commissioner refused to grant an interim order vide impugned order dated 16.5.2008. The appeal is still pending before him. The appellate authority has refused stay upon discussing the merits of the claim only on the ground that the petitioners and the tenure holder are not entitled to exercise any further right of choice in respect of the plots in dispute, as their entitlement has been rightly adjudicated.
(3.) AFFIDAVITS have been exchanged and the matter is being disposed of under the Rules of the Court with the consent of parties. Having heard learned Counsel for the parties, it appears to be necessary to discuss the prima facie case of the petitioners. There was some dispute about the first notice which was disposed of on 31.1.75 on the ground that the mutation order as a consequence of the family settlement had not been actually carried out and whether there was any adverse order by the Addl. Commissioner in respect of the mutation order or not. The Prescribed Authority who disposed of the matter on 31.1.75 entertained the recall application which was described as a review application moved by the Naib Tahsildar (Ceiling) and the said review application was allowed on 25.7.75 on the ground that mutation order which had been carried out pursuant to the family settlement, had been put in abeyance by the Additional Commissioner. Consequently the Prescribed Authority delivered a judgment dated 24.9.75 and declared certain land surplus.;