Allahabad High Court
Raj Kumar Gupta (Since Deceased) And 2 ... vs Union Of India And 2 Others on 17 October, 2022
Author: Vivek Chaudhary
Bench: Vivek Chaudhary
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 4 Case :- MATTERS UNDER ARTICLE 227 No. - 9125 of 2022 Petitioner :- Raj Kumar Gupta (Since Deceased) And 2 Others Respondent :- Union Of India And 2 Others Counsel for Petitioner :- Iqbal Ahmad Counsel for Respondent :- A.S.G.I. Hon'ble Vivek Chaudhary,J.
Heard Sri Iqbal Ahmad, learned counsel for the petitioner and Sri Puskar Srivastava, learned counsel for the Union of India.
At the very outset, Sri Iqbal Ahmad, learned counsel for the petitioners submits that the controversy involved in the petition is squarely covered by a decision of this Court dated 20.9.2022 passed in Matter Under Article 227 No. 6427 of 2022 along with other connected matter. Therefore, it is urged that the present petition may be decided in terms of the aforementioned decision.
For ready reference, the order dated 20.9.2022 passed in the Matter Under Article 227 No. 6427 of 2022 along with other connected matter is extracted as under:-
"Heard Sri Iqbal Ahmad and Sri Kishitij Shailendra, learned counsel for the respective petitioners appearing in this petition as well as in connected petitions and Sri P.N. Rai, Sri Aditya Kumar Singh, Sri Ajay Kumar Gautam, Sri Gyanendra Kumar Dwivedi, Sri Hridaya Narayan Mishra, Sri Ram Sarana, Sri Prahlad Singh, Sri Sukhdev Singh, Sri Ishwar Das, Sri Ajay Singh, Sri Arvind Singh, Sri Purnendu Kumar Singh, Akhilesh Kumar Mishra, Sri Ram Kinkar Shukla, Sri Shushil Kumar Pandey, Sri Pranat Chaudhari-I, Sri Ashish Tripathi, and Smt. Archana Srivastava, learned counsel appearing for the respective respondents in all the connected petitions.
All these petitions raise common question of law and facts and, therefore, they are being disposed by this common order.
The petitioners before this Court are occupants of the premises either as a tenant or licensee of the respondent- railways and the proceedings that have been drawn against them under the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 (hereinafter referred to as 'Act, 1971') were claimed to be not as per the procedure prescribed for and hence they have all appealed against the orders passed by the prescribed authority.
It is argued before this Court that though appellate authority, namely, District Judge, Moradabad has admitted the appeals but interim prayer for stay has been rejected on the ground that petitioners were unauthorized occupants. A legal submission has been advanced before this Court that the court of appeal was not justified in assuming their status as unauthorized occupants even before deciding the appeals. It is thus argued that holding appellants - petitioners unauthorized occupants is too harsh and amounts to frustrating the very purpose of filing the appeals.
Learned counsel for the petitioners have relied upon the judgment of Supreme Court in the case of Mool Chand Yadav and another v. Raza Buland Sugar Co. Ltd. and others, 1983 AWC 121.
Per contra, it is argued by learned counsel for the respective respondents that unauthorized occupants are said to be removed from the premises in question in compliance of the order passed by the Supreme Court passed in Special Leave Petition (Civil) Diary No (s). 19714 of 2021.
Having heard learned counsel for the parties and their arguments raised across the bar, I am of the view that moot question involved is as to whether the petitioners before this Court were entitled to get interim protection during the pendency of the admitted statutory appeals.
It is a fact admitted to the respondents Union of India and Railways that in order to get petitioners evicted from the premises in question they instituted cases under the Act, 1971.
The Act, 1971 itself provides for statutory remedy of appeal and hence every person if aggrieved against the order of prescribed authority is entitled to appeal against the order of eviction. The appeals being statutory one in nature have been rightly admitted for hearing, but the question remains to be considered is that if occupants get removed/ dispossessed by getting the order of eviction enforced through coercive measures pursuant to the orders which are appealed against, what purpose would be left to get the appeals heard, to wit only academic. In my considered view, this can not be the intendment of Legislature in incorporating a provision of appeal. Remedy of appeal which is statutory in nature can not be rendered as an empty formality.
Supreme Court has observed in so many words in the case cited (supra) that the interest of occupants should be looked into and, therefore, interim order should be granted so as to not to defeat very purpose of filing the appeal. Paragraph 4 of the order of Supreme Court runs as under:
"4. We heard Mr. S.N. Kacker, learned Counsel for the appellants, and the respondents appeared by Caveat through Mr. Manoj Swarup, Advocate. We are not inclined to examine any contention on merits at present, but we would like to notice of the emerging situation if the operation of the order under appeal is not suspended during the pendency of the appeal. If the F. A.F.O. is allowed, obviously Mool Chand Yadav would be entitled to continue in possession. Now, if the order is not suspended in order to avoid any action in contempt pending the appeal, Mool Chand would have to vacate the room and handover the possession to the respondents in obedience to the Court's order. We are in full agreement with Mr. Manoj Swarup, learned advocate for respondents, that the Court's order cannot be flouted and even a covert disrespect to Court's order cannot be tolerated. But if orders are challenged and the appeals are pending, one cannot permit a swinging pendulum continuously taking place during the pendency of the appeal, Mr. Manoj Swarup may be wholly right in submitting that there is intentional flouting of the" Court's order. We are not interdicting that finding. But judicial approach requires that during the pendency of the appeal the operation of an order having serious civil consequences must be suspended. More so when appeal is admitted. Previous history of litigation cannot be overlooked. And it is not seriously disputed that the whole of the building, Hari Bhawan, except one room in dispute is in possession of the Corporation. We accordingly suspend the operation of the order dated 6th August 1982 directing the appellants to handover the possession of the room to the respondents till the disposal of the first appeal against that order pending in the High Court of Allahabad. Mr. Manoj Swarup requests that both the earlier and later Appeals should be heard together as early as possible, We order accordingly and request the High Court if it considers proper in its own discretion to hear both the appeals as expeditiously as possible in order to avoid the continuance of the boiling situation. The appeal stands disposed of. There shall be no order as to costs."
(emphasis added) Nobody would doubt if unauthorized occupants are liable to be evicted but Rule of Law demands that the procedure prescribed for, must be followed.
In view of the above, therefore, it would be appropriate that the admitted appeals of the defendants- petitioners are directed to be disposed of within a time bound period and until such decision, the orders of prescribed authority appealed against are put in abeyance.
Accordingly, all these petitions are disposed of with a direction to the appellate authority under the Act, 1971 to dispose of the pending appeals of the respective petitioners before it positively within a period of three months from today and petitioners undertake through their respective counsel to cooperate in the disposal of appeal and until such disposal, the effect and operation of the orders passed by the prescribed authority which have been appealed against, shall remain in abeyance."
The present petition is also disposed of in terms of the aforesaid order.
Order Date :- 17.10.2022 Krishna* (Vivek Chaudhary,J.)