Daroga and Another vs Commissioner and Others

D.K. Seth, J.—In this case, the Petitioners had made an application u/s 11(2) of U.P. Imposition of Ceiling on Land Holdings Act, 1960. The said application was decided against the Petitioners by an order dated 29.5.1995. The Petitioners preferred an appeal against the said order u/s 13 of the said Act, being Ceiling Appeal No. 28/3/M/1995. The said appeal is still pending. The Petitioners had made application for stay of the operation of order dated 29.5.1995 and/or restraining the Respondents from dispossessing the Petitioners pursuant to the said order. But the said application has yet not been disposed of On the other hand, the Collector, Maharajganj, is attempting to obtain possession, pursuant to the order dated 29.5.1995.

Learned Counsel for the Petitioners Sri P.K. Misra, submits that the Respondents No. 4, 5 and 6 had also made an application u/s 11(2) of the Act and their case was also decided against them. The said Respondents do not have any interest adverse to that of the Petitioners in the present case.

Section 14 of the said Act provides in Sub-section (1) as follows:

Acquisition of surplus land.--(1) The Collector shall at any time after--

(a) in case, whether the order passed under Sub-section (1) of Section 11 has become final, the date of its so becoming final; or

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

(c) in case, where an appeal has been preferred u/s 13, the date of its decision,

take possession of the surplus land determined u/s 11, Section 12 or Section 13 and also of any ungathered crop or fruits of trees, not being crops or fruits to which Sub-section (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 plain reading of the above provision shows that even if there is an order for taking possession by the Collector, even then no possession can be taken until the appeal u/s 13 of the Act is decided. Sub-section (1) of Section 14 of the Act clearly lays down that the possession shall be taken only after, (a) the order u/s 11(1) has become final, namely, after the date of its becoming final, (b) in case, where no appeal has been preferred u/s 13 after the expiry of the period of limitation provided for preferring the appeal, or (c) in case, where an appeal has been preferred u/s 13, only after the date of decision in the appeal.

There cannot be any scope of two interpretations of the said provision. It is a statutory mandate on the Collector with regard to taking over possession in respect of the surplus land, which prohibits taking over possession on the conditions enumerated in the said section. Therefore, even in the absence of any application of stay, such order for taking over possession cannot be implemented.

So far as the view with regard to interpretation of Section 14(1)(c) of the Act, which I have taken, is also supported by the judgment dated 20.4.1995 passed in Writ Petition No. 10440 of 1995, in which Hon. B. Dikshit, J. had taken the same view, "even if stay application was not moved, the Collector cannot direct taking over possession till the appeal is finally disposed of."

It is established principle of law that during the pendency of appeal where right of the parties are yet to be adjudicated, the interim orders may be passed in order to preserve the situation so as not to create unnecessary complication in the matter of alteration of the position inasmuch as if possession is taken during the pendency of appeal and ultimately the appeal succeeds, in that event, the possession is to be restored. "One cannot permit a swinging pendulum continuously taking place during the pendency of appeal" is the observation made in the case of Mool Chand Yadav and Another Vs. Raza Buland Sugar Company Limited, Rampur and Others, by the Apex Court. It was observed in the said case that previous history of the case is to be looked into for this purpose. Inasmuch as if the possession is already taken and/or the land is allotted to some one else, then such a position cannot be reversed. The position obtained on the date of hearing of the application is a relevant factor to be taken into consideration.

It appears that in order to overcome such a situation, specific provision has been made in Section 14(1)(b) and (c) of the Act. Therefore, the Collector cannot take any step for taking possession in view of Section 14(1) of the Act until these conditions are fulfilled. As soon an application for stay is made in the appeal, it is incumbent on the appellate authority to dispose of the stay application in one or the other way having regard to the above provision.

But the case would be altogether different where appeal is preferred after the expiry of the period of limitation provided for. In such cases, during the pendency of the appeal, there cannot be any such mandate as contemplated in Section 14(1)(c). Therefore, the prohibition regarding taking of possession contemplated u/s 14(1)(c) would not be attracted. On the contrary, Clause (b) of Section 14(1) would become operative. Therefore, in such cases, the Collector would be free to take possession after the period for appeal is over.

But during the pendency of the appeal, the appellate authority, in its discretion, is free to take any decision having regard to the facts and circumstances of each case. But he cannot keep such application for stay pending for an indefinite period. He has to dispose of the same within a reasonable time by passing appropriate order at his discretion which should be judicious depending on the facts and circumstances of the case.

in the present case, no right of the parties are being decided. It is only interlocutory order which is being decided in the present case. That too on the interpretation of law, which is already concluded by a decision of this Court, referred to above. Therefore, in my view, the private Respondents Nos. 4, 5 and 6 though not served, will not suffer any prejudice. They have every right to agitate their right in the appeal itself, if they are so advised, on merits at the time of hearing or disposal of the appeal. In that view of the matter, notice upon the Respondent Nos. 4, 5 and 6 are hereby dispensed with.

In the above circumstances, in order to avoid any further delay, the writ petition is hereby disposed of by directing the appellate authority to dispose of the application for stay in the light of observations made within a period of four weeks from the date a certified copy of this order is produced before him. The Collector is hereby restrained from taking possession of the disputed property, if not already taken, till the decision of the said application for stay. This Court hopes and trust that the appellate authority shall dispose of the appeal in accordance with law as early as possible preferably within a period of six months. The question of possession shall not be altered if the Petitioners have already been dispossessed in the meantime or they are not in possession.

With the above observations, the writ petition is disposed of.

There will be, however, no order as to costs.