Chandra Prakash v. State of Uttar Pradesh — 1982 DIGILAW 860 (ALL)

ORDER M.P. Mehrotra, J. - This petition under Article 226 of the Constitution arises out of the ceiling proceedings. The facts, in brief, are these. The petitioner Chandra Prakash (who is now dead and whose legal representatives have been brought on the record during the pendency of this petition) was issued notice under S. 10 (2) of the Act and he filed objections They were decided by the prescribed Authority vide his order dated 30th December, 1974, a true copy of which is Annexure 3 to the petition. Against the said order two cross-appeals were filed one by the State and the other by the petitioner. Both the appeals were partly allowed by common judgment dated 16th July, 1975, a true copy of which is Annexure 4 to the petition. The appellate court by the said order remanded the case to the trial court with certain directions. The trial court, thereafter, reheard the case and passed its order dated 31-3-1977, a true copy of which is Annexure 5 to the petition. Against the said order of the Prescribed Authority, an appeal was filed and the appellate court remanded the case to the Prescribed Authority by his order dated 7-7-1977 a true ijpopy of which is Annexure 6 to the petition. Thereafter, the Prescribed Authority in compliance with the said remand order dated 7-7-1977 passed its order dated 24-10-1977, a true copy of which is Annexure 7 to the petition. Against the said order dated 24-10-1977, an appeal was filed and the same was dismissed by the appellate court by its judgment dated 10-1-1978, a certified copy of which is on the record as Annexure 8 to the petition. 2. Feeling aggrieved, the petitioner has now come up in the instant petition and in support thereof have heard Sri V. Sahai, learned counsel for the petitioner. In opposition, the learned Standing Counsel has made his submissions. 3. The learned counsel pressed two contentions in the petition. Firstly, he contended that the plot No 2456 was wrongly not treated as grove in the instant ceiling proceedings when the same had been treated as grove in the case of the ceiling proceedings of a co-owner. In opposition, the learned Standing Counsel has made his submissions. 3. The learned counsel pressed two contentions in the petition. Firstly, he contended that the plot No 2456 was wrongly not treated as grove in the instant ceiling proceedings when the same had been treated as grove in the case of the ceiling proceedings of a co-owner. In this connection, he placed reliance on Annexure 9 which is a true copy of the appellate judgment passed in the appeals of Mukhtar Singh and other and in para 10 whereof, it was laid down as follows : - "A perusal of the statement of the Lekhpal will go to show that plot Nos. 97. 114, 2456, 2458 and 2471 and 73 of Khata No. 208-B are grove. According to his statement, the grove in these plots is old and they are very compact. This means that no cultivation is possible. This fact is also corroborated by the statement of Commissioner, supported by his report of local inspection. Thus we find that these plots have groves." It should be seen that every case is decided on the basis of the evidence led in the case. Obviously, the orders passed in the ceiling proceedings cannot be treated as judgments in rem. In the instant ceiling proceedings, it is not shown that any such evidence was led as was led before the authorities concerned in the case of the others. Accordingly, I cannot find any fault with the impugned order. Needless to emphasise, the finding is clearly a finding of fact. The appellate court in the impugned judgment has observed:- "Only four mango trees are in existence of plot No. 2456. Keeping in view the area of plot No. 2456, the distance between the four trees, their thickness etc., it can safely be said that these four mango trees are fully grown trees and they cannot and do not prevent cultivation. Consequently, plot No. 2456 cannot be treated as grove and the prescribed Authority committed no error in holding so." This contention is accordingly rejected. 4. The learned counsel next contended that the sale deed dated 1-12-1971 executed by the petitioner was wrongly ignored by the ceiling authorities. It should be seen that the prescribed Authority by his order passed as far back as 30-12-1974 had rejected the claim of the petitioner in this behalf. 4. The learned counsel next contended that the sale deed dated 1-12-1971 executed by the petitioner was wrongly ignored by the ceiling authorities. It should be seen that the prescribed Authority by his order passed as far back as 30-12-1974 had rejected the claim of the petitioner in this behalf. Thereafter, the petitioner went up in appeal and the appellate court also rejected the said contention by its judgment dated 16-7-1975. Thereafter, on various occasions the cases travelled to the appellate court and were remanded to the Prescribed Authority but the point was never raised or pressed. Neither was it stated that the point was being reserved for future controversy. The learned counsel has placed reliance on the letter of a local counsel to contend that the said learned counsel gave an advice that as the order was. that of remand, therefore, it was not necessary to set up the said claim. I should not like to say anything about the said letter. However, in the circumstances of this kind, I do not think that should allow the judgment dated 17-7-1975 to be questioned at this distance of time. Apart from the said fact, I should like to say that do not find merit in the contention of the learned counsel. He has placed reliance on my decision reported in Prithi Pal Singh v. State of U. P. (1982 All LJ 437) where emphasised that the expression 'not being of Benami transaction or for immediate or deferred benefit of the tenure-holder or other members of his family' should be interpreted in such a manner that the latter part of the said expression takes its colour '' from the earlier part. In this connection, placed reliance on certain observations in the Supreme Court pronouncements in Bhupendra Singh v. State of U. P. ( AIR 1981 SC 1157 ) :(1981 All LJ 400). I wish to emphasise that in the facts of the instant case, that approach is not material. The appellate court in its aforesaid judgment , dated 16-7-1975 made a big point by stating that the purchaser did not enter the witness-Ibox. Certain other aspects of the matter were emphasised. In such circumstances, I do not think that the ruling reported in 1982 All LJ 437 can have any application. The appellate court in its aforesaid judgment , dated 16-7-1975 made a big point by stating that the purchaser did not enter the witness-Ibox. Certain other aspects of the matter were emphasised. In such circumstances, I do not think that the ruling reported in 1982 All LJ 437 can have any application. It (should be seen that the facts in the two : Supreme Courts pronouncements namely; Brijendra Singh v. State, (1980 All LJ 1105) : ( AIR 1981 SC 636 ) and in Bhupendra Singh v. State, ( AIR 1981 SC 1157 ) were peculiar and there was nothing to doubt the genuineness of the sale transactions involved therein. In the instant case this is not the position. The second contention is also accordingly rejected. 5. This petition fails and is dismissed but there will be no order as to costs.