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1979 DIGILAW 1354 (ALL)

Kamta Ojha v. State of U. P

1979-12-18

M.P.MEHROTRA

body1979
ORDER M. P. Mehrotra, J. -This petition arises out of the proceedings under the U. P. Imposition of Ceiling on Land Holdings Act, 1960. The facts, in brief, are these; The petitioner No. 1 was issued a notice under Section 10 (2) of the Act and he filed objections. Those objections were decided by the Prescribed Authority by his order dated 30-10-1976, a true copy whereof is Annexure 1 to the petition. Thereafter the petitioner No. 1 filed an appeal and the same was decided by the appellate Court by its judgment dated 10-5-1978, a true copy whereof is Annexure No. 3 to the petition. 2. Now the petitioners have come up in the instant writ petition and in support thereof I have heard Sri L. N. Pandey, learned counsel for the petitioners. In opposition, the learned Standing Counsel has made his submissions. 3. Learned counsel for the petitioners pressed two contentions before me. Firstly, he contended that the appellate court was wrong in not giving benefit of the entire share which had been found to be that of the son of petitioner No. 1 in the land which had been found to be ancestral Sir and Khudkasht before the date of vesting. It seems that the Prescribed Authority found that 9.65 acres of land was ancestral Sir and Khudkasht before the date of vesting and that a son of the petitioner No. 1 was in existence on the said date and hence he had half share in that land. The sons share was found to be 4.83 acres. The Prescribed Authority excluded the said share of the son from the tenure-holders holding. In appeal, which was filed by the State, the appellate court held that the Prescribed Authority should not have given the benefit of the entire said area, which had been found to be the share of the petitioner No. ls son. The appellate court held that the net benefit to the petitioner-tenure-holder should have been calculated after taking into consideration the provisions in Section 5 (3) (a) & (b) wherein it is clearly laid down that benefit of two additional hectares of irrigated land for an adult son shall stand proportionately reduced if it is found that such adult son is himself a tenure-holder holding land less than two hectares of irrigated land. In other words, the maximum benefit for an adult son is fixed at two hectares of irrigated land and the extent of such benefit gets reduced in proportion to the land which is held by such adult son as a tenure-holder thereof. In this view of the matter, the appellate court was right in holding that the tenure-holder could not have both the benefits - namely, he could not get the benefit of having the share of the son excluded from his holding and at the same time the benefit of two additional hectares of irrigated land for such adult son. Therefore, the first contention is untenable. 4. Learned counsel for the petitioner next contended that the sale deeds which were executed after 24-1-1971 should not have been ignored by the appellate court. It should be seen that they had been accepted by the Prescribed Authority but in appeal, the appellate court ignored them holding that the tenure-holder was not entitled to the benefit of clause (b) of the proviso to Section 5 (6). Sri Pandey contended before me that under clause (b) of the proviso to Section 5 (6h the material, point to be considered was the subjective satisfaction of the Prescribed Authority and, therefore, the appellate court could not interfere with the exercise of such subjective satisfaction of the Prescribed Authority. He placed reliance on a decision of mine reported in Satnam Singh v. State of U. P. ((1979) 5 All LR 148). In my opinion, the said decision does not support the contention of the learned counsel. There have laid down that the satisfaction of the Prescribed Authority cannot be merely, subjective. Further, it should be seen that an appellate court has normally the same power which a trial court has. S. 107 (2) of the Civil Procedure Code lays down as under:- "Subject as aforesaid, the appellate court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on courts of original jurisdiction in respect of suits instituted therein." 5. Therefore, it was open to the appellate court to have considered the provisions contained in Section 5 (6) and the proviso thereto in the same manner as the Prescribed Authority was entitled to consider them. Therefore, it was open to the appellate court to have considered the provisions contained in Section 5 (6) and the proviso thereto in the same manner as the Prescribed Authority was entitled to consider them. In Ram Agyan Singh v. Murli Dhar Agarwala (1969 All LJ 1060) a Division Bench laid down as under : "..........and think it is well settled that where it is the satisfaction of a statutory authority which affects the determination of a question it is not open to the court on a petition for certiorari to interfere with that determination unless the satisfaction of the statutory authority can be shown to be perverse or vitiated by mala fide." However, the said observations were made in reference to the limited scope for interference in the writ jurisdiction, The said observations will not be applicable to an appellate court, which hears a regular first appeal. In my view, under Section 13 of the U. P. Imposition of Ceiling on Land Holdings Act, the appellate court is entitled to decide the appeal on the entire facts and law and its powers in no way are circumscribed compared to the powers of the Prescribed Authority. Accordingly, the second contention of the learned counsel, for the petitioner is also rejected. 6. This petition accordingly fails and hereby dismissed. There shall be no order as to costs.