Brijeshwar Prasad Singh vs Addl.Commissioner (Judicial), Faizabad Division, Faizabad and Others

I. M. Quddusi. J.

Heard learned counsel for the petitioner and the learned Standing counsel for the State of U.P.

This writ petition has been filed against the impugned order dated 23.4.2003 passed in Ceiling Appeal No.19 by the Additional Commissioner (Judicial), Faizabad Division, Faizabad, by which he has rejected the application for stay of the operation of the order dated 31.3.2003 passed by the Prescribed Authority (Ceiling), Ambedkar Nagar.

The brief facts of the case are that the surplus land from the holding of the petitioner was declared earlier by the Prescribed Authority (Ceiling) by the order dated 26.11.1974 passed in Case No.3 under Section 10 of the U.P. Imposition of Ceiling on Land Holdings Act (hereinafter referred to as the Act). Subsequently another notice dated 20.6.1998 was issued by the prescribed authority to the petitioner under Section 10(2) of the Act for declaration of surplus land. Case No.2 was registered on the same which was decided ex parte by the prescribed authority on 30.3.1999. Being aggrieved by it, the petitioner filed an appeal under Section 13 of the Act which was allowed by the Additional Commissioner (Executive) Faizabad Division, Faizabad on 20.9.2001 and remanded the same to the prescribed authority after setting aside the order passed by him. During the pendency of the appeal, the order of the prescribed authority remained stayed. Thereafter the State filed Case No.1 under Section 10(2) of the Act before the prescribed authority (Ceiling). The prescribed authority vide its order dated 11.3.2003 redecided the case declaring an area of 10.181 hectares land of the petitioner as surplus. Against the said order, the petitioner filed Ceiling Appeal registered as Ceiling Appeal No.19 district Ambedkar Nagar alongwith an application for stay of the operation of the above order passed by the prescribed authority, before the commissioner, Faizabad Dvision, Faizabad. The appeal as well as the application for stay came up before the Additional commissioner (Judicial), Faizabad Division, Faizabad who rejected the application for stay order of the petitioner vide its order dated 23.4.2003. Being aggrieved by the same, the instant writ petition has been filed.

In Section 14 of the Act, there are restrictions imposed upon the Collector for taking possession of the surplus land determined under Sections 11,12 and 13 of the Ceiling Act in case the order passed under subsection (1) of Section 11 by the Prescribed Authority has become final. The provisions of subsection (1) of Section 14 of the Ceiling Act are also quoted as under:

"14(1). The Collector shall at any time after

(a) in case, where the order passed under subsection (1) of the Section 11 has become final, the date of its so becoming final; or

(b) in case, where no appeal has been preferred under Section 13, the date of expiry of the period of limitation provided therefor; or

(c) in case, where an appeal has been preferred under Section 13, the date of its decision,

take possession of the surplus land determined under section 11, Section 12 or Section 13 and also of any ungathered crop or fruits of trees, not being crops or fruits to which subsection (1) of Section 15 applies, after evicting any person found in occupation of such land, crops or fruits and may for that purpose use or cause to be used such force as may be necessary."

A perusal of the above quoted provision shows that it has been provided therein that in case where an appeal has been preferred under Section 13, after the date of its decision, the Collector may take possession of the surplus land, meaning thereby the order of the Prescribed Authority cannot be treated to have become final, unless the appeal is decided in case the same has been filed. But in case no appeal has been filed, it is open for the Collector to take possession of the surplus land only after the date of expiry of the period of limitation provided for filing an appeal in subsection (3) of Section 11 of the U.P. Imposition of Ceiling on Land Holdings Act. It has been clarified that as to when the order of Prescribed Authority shall be treated as final in that subsection. It has been provided that subject to the provisions Of subsection (2) of Section 13, the order of the Prescribed Authority shall be final and conclusive and be not questioned in any court of law. In subsection (2) of Section 12 also, it has been provided that subject to any appellate order under Section 13, the order of the Prescribed Authority under subsection (1) of Section 12 shall be final and conclusive and shall not be questioned in any court of law. In subsection (2) of Section 13, it has been provided that the Commissioner shall dispose of the appeal as expeditiously as possible, and his decision thereon shall be final and conclusive and be not questioned in any court of law.

Therefore, finality of the order of Prescribed Authority comes only on the decision of appeal in case appeal is filed by the tenure holder.

In view of the above provisions, this Court is of the opinion that once the appeal has been filed, it was not proper for the Additional Commissioner (Judicial), Faizabad Division, Faizabad to reject the stay application filed alongwith the appeal, moreso when the stay order was granted earlier by the Additional Commissioner (Judicial) Faizabad Division, Faizabad when the Appeal was filed against the order of the prescribed authority and which was remanded to the prescribed authority for further decision.

In view of what has been discussed above, the writ petition is allowed in part. The order dated 23.4.2003 passed by the Additional Commissioner, (Judicial), Faizabad Division, Faizabad rejecting the stay application during the pendency of the ceiling appeal is quashed. A writ in the nature of mandamus is issued commanding the Additional Commissioner (Judicial), Faizabad Division, Faizabad to decide the appeal, as expeditiously as possible, after providing opportunity of hearing to the parties concerned and during the pendency of the appeal, status quo as on today shall be maintained by the parties over the land in dispute in respect of possession as well as maintenance of records and the allotment of land in dispute shall also not be made in favour of any.

(Petition allowed)