Hon’ble Sanjay Misra, J.—Heard Sri P.N. Saxena learned Senior Counsel assisted by Sri Mukesh Kumar Kushwaha for the appellant Sri S.K. Verma learned Senior Counsel assisted by Sri Siddharth Verma learned counsel for some of the plaintiff respondents and Sri A.K. Gaur learned counsel appearing on behalf of the respondent No. 37 Union of India.

2. Sri S.K. Verma while pressing his application for vacation of the interim order has submitted that the interim order passed by the Division Bench could not have been passed in view of the decision in the case of Harish Chander Verma v. Kayasth Pathshala Trust and Others, JT 1988 (1) SC 625.

3. The interim order dated 9.5.2011 passed by the Division Bench is quoted here under :

“The counsel for the appellant submits that;

It is not necessary that overbridge be marked in the master plan;

The average number of trains passing through the railway crossing is about 51 per day and the railway crossing gate remains closed most of the time;

The average number of vehicles passing through the railway crossing is about 1,7157 because of this, traffic jams are common;

The technical team of the Railways, UP bridge Corporation and Ghaziabad Development Authority (GDA) had given the report that the bridge is feasible;

No private land is being taken for construction of the over bridge and only the land of the GDA and the Railway is being taken;

The construction of the over bridge is not only necessary but it is in the public interest.

Admit.

Issue notice.

Till further orders of this Court the operation of the impugned order dated 17.3.2011 shall remain stayed. However, the over bridge will beconstructed at the risk of the appellant. In case the appellant ultimatelly loses the case then it will be remove the same.”

4. Sri Verma has referred to paragraphs 1, 2 and 3 of the judgment in Harish Chander Verma’s case (supra) which are quoted here under :

“Special leave granted. Heard learned counsel for the parties. When the suit for permanent injunction was pending the question of interim injunction had come before the High Court and when the High Court had granted injunction at the instance of the present appellant the respondent moved this court by way of special leave petition and the same was dismissed. The suit has now been deemed ad permanent injunction had been ordered against the respondents. In appeal against the decree for permanent injunction the High Court by the impugned order has permitted the defendant-respondent herein to raise construction subject to the condition that in the event of the decree being affirmed the construction shall have to be pulled down.

Apart from the convenience the parties and equity arising in the facts of the case, a larger principle is involved in the matter. On the face of a decree for permanent injunction is it appropriate for the appellate court to allow it to be nullified before the appeal is disposed of. We are of the view that the answer has to be in the negative.

We accordingly allow the appeal, vacate the order of the High Court and direct status quo as existing today to continue during the pendency of the appeal before the High Court. The High Court is requested to dispose of the appeal within six months from the date of the receipt of this order.”

5. He has also referred to the decision in the case of Assistant Collector of Central Excise, Chandan Nagar, West Bengal v. Dunlop India Ltd., AIR 1985 SC 330 and has submitted that the Supreme Court deprecated the practice of granting interim order which practically gives the principle relief sought in the petition for no better reason than that a prima facie case has been made out without being concerned about the balance of convenience the public interest and host of relevant considerations.

6. He has also referred to a decision of Supreme Court in the case of G. Kamala Rao v. K. Jawahar Reddy and another, JT 2000 (4) SC 351 and refers to paragraphs 4 and 5 therein. Paragraphs 4 and 5 are quoted here un