Apr - High Court of Judicature at Allahabad

1 All Naushad Alam V. State of U.P. and others 475
2. Learned standing counsel states that
since a pure question of law is involed it is
not necessary to file a counter affidavit at
this stage.
3. The petitioner is a tenure holder
against whom proceedings were initiated
under the U.P.Imposition of Ceiling on
Land Holdings Act, 1960 and the
Prescribed Authority vide orderdated
28.2.2011 declared certain land as surplus in
the hands of the petitioner. Aggrieved the
petitioner has preferred an appeal being
Ceiling Appeal No.3 of 2010-11 which has
been admitted on 15.4.2011. However,
while admitting the appeal the application
for an interim relief has been rejected on the
ground that there is no justification for grant
of any interim order.
4. Learned counsel for the petitioner
submits that in view of the provisions of
clause (c) of Section 14(1) of the 1960 Act,
the Collector can take possession of the
surplus land only after decision in appeal
and upon a notification being issued under
Section 14. He submits that the aforesaid
situation has not arrived and therefore the
appellate authority ought to have granted an
interim order so as not to disturb the
possession of the petitioner during the
pendency of the appeal.
5. Learned standing counsel submits
that as a matter of fact that in view of the
legal position as indicated by the petitioner,
the appeal itself has to be disposed of before
possession can be taken.
6. Having heard learned counsel for
the parties as a matter of fact the Collector
cannot take possession of the land so long
as the appeal is not decided in terms of the
provisions referred to hereinabove.
7. Even otherwise in such matters
where an appeal is filed and the same has
been admitted, the same presumes a prima
facie case of the petitioner. The appellate
authority should therefore not refuse to
exercise discretion for granting interim
relief as indicated in the case of Mahmood
Rais V. State of U.P. reported in 2009(5)
ADJ 529. Learned Commissioner himself
has admitted the appeal and therefore the
rejection of the stay application is
unjustified.
8. Accordingly the writ petition is
disposed of with a direction that the
petitioner should not be dispossessed from
the land in dispute till the disposal of the
appeal at this stage.
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ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.04.2011
BEFORE
THE HON'BLE SUDHIR AGARWAL,J.
Civil Misc. Writ Petition No. 61552 of 2008
Naushad Alam
Versus
State of U.P. and others
Counsel for the Petitioner:
Sri J.A. Azmi
Sri J.J. Munir
Counsel for the Respondent:
C.S.C.
Sri J.P.Singh
Sri S.K.Anwar
Sri T.M. Abbasi
Sri Zafar Abbas
...Petitioner
...Respondents
Intermediate Education Act 1921-
Chapter III Regulation 103-
compassionate appointment-minority
institution-provision of Regulation 103
already quashed by Single Judge-