IMPORTANT POINTS
Abatement of land ceiling proceeding – Payment of compensation has nothing to do with taking over of possession – Payment of compensation under Urban Land (Ceiling and Regulation) Act, 1976 and taking over possession after notification issued under Section 10(3)/10(5) of Act, 1976, both are different and distinct.

JUDGMENT :

M.R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 30.07.2009 passed by the High Court of Orissa in OJC No.4048 of 1994 by which the High Court has allowed the said writ petition preferred by the respondents herein – original writ petitioners – original land owners and has quashed and set aside the orders passed by the Competent Authority under the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as “the Act, 1976”) declaring Ac. 0.865-7 area of the land as excess vacant land under the provisions of the Act, 1976, the State has preferred the present appeal.

2. The facts leading to the present appeal in nutshell are as under:-

2.1 That the proceedings under the provisions of the Act, 1976 were initiated with respect to the holdings of the original writ petitioner No.1 – Sakhi Bewa. By order dated 01.03.1984, the Competent Authority under the Act, 1976 declared Ac. 0.865-7 as excess vacant land. Final statement under Section 9 of the Act, 1976 was issued on 27.03.1984.

2.2 That thereafter a notification under Section 10(1) of the Act, 1976 was issued on 30.04.1984 with respect to the land declared as excess vacant land. The original landowners filed an appeal before the Appellate Authority in the month of May, 1984. A declaration under Section 10(3) of the Act, 1976 was published on 26.10.1984. That thereafter the Competent Authority sent a notice dated 30.11.1984 under Section 10(5) of the Act, 1976 to the respondents – original landowners to deliver vacant possession of the excess vacant land to Tehsildar.

2.3 That an appeal was preferred by the original landowners against the order passed by the Competent Authority declaring Ac. 0.865-7 land as excess vacant land, which came to be dismissed by the Board of Revenue – Appellate Court vide order dated 05.05.1987.

2.4 That according to the State the Tehsildar, Sadar, Cuttack, has taken over the possession of the land on 25.04.1988. The respondents – original writ petitioners filed a writ petition being OJC No.2550 of 1987 before the High Court challenging the order passed by the Competent Authority dated 01.03.1984 as well as the order passed by the First Appellate Court – Board of Revenue. The said writ petition came to be dismissed for non-prosecution on 01.11.1991. After a period of approximately three years a restoration application was filed being M.J.C. No.10 of 1994. But the same came to be dismissed by the Division Bench by observing that the grounds for the delay are far from satisfactory and that there is no justification either for condoning the delay and annulling the earlier order of dismissal. However, the Division Bench observed that the petitioner may file a fresh petition, if permissible. That thereafter the respondents herein filed a fresh petition before the High Court being OJC No.4048 of 1994 again challenging the order passed by the competent authority dated 01.03.1984 as well as the order passed by the Board of Revenue dated 05.05.1987 which were as such subject matter of writ petition being OJC No.2550 of 1987, which was dismissed for non-prosecution on 01.11.1991. That an ex parte ad interim order was passed by the High Court on 10.06.1994 and it was ordered that the authorities may take over the possession of the vacant surplus land but will not change the nature or character of the land until further orders from the court. At this stage, at the cost of repetition it is observed that all throughout, the case on behalf of State was that even prior to said ex parte ad interim order, the possession of the surplus land was already taken over by the Tehsildar on 25.04.1988. A counter was filed on behalf of State opposing the writ petition in which it was also specifically pointed out that the possession of the surplus land has been taken over by the Tehsildar on 25.04.1988. The respondents, however, dispute the said position, their contention being that they have always been in possession o