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2016 DIGILAW 188 (ALL)

Sheo Moorat v. Addl. Commissioner

2016-01-13

ANJANI KUMAR MISHRA

body2016
JUDGMENT Anjani Kumar Mishra, J. – Heard Sri Triveni Shankar, learned counsel for the petitioners and Sri Sanjay Goswami, learned counsel for the State respondents. 2. The writ petition arises out of proceedings under the U.P. Imposition of Ceiling on Land Holding Act and seeks quashing of the order dated 28.06.1995 passed by respondent no.1 and the order dated 15.10.1992 passed by the Prescribed Authority. The prescribed authority has dismissed the recall application filed by the petitioners which order has been affirmed by the appellate court. 3. The Ceiling proceedings under the Act were initiated against the father of the petitioners by means of a notice under Section 10(2) of the Act who contested these proceedings alleging that he was not possessed of any surplus land. 4. The Prescribed Authority by the order dated 05.02.1976 declared 7.73 acre of land to be surplus in the hands of the tenure holder. This order was affirmed by the appellate court vide order dated 06.05.1977. 5. Aggrieved, the father of the petitioners preferred writ petition No.3312 of 1977 which was allowed on 04.01.1979 and the matter was remanded back to the prescribed authority for passing a fresh order after affording opportunity to the tenure holder to lead additional evidence regarding plots which had been treated as irrigated by the Ceiling Authority. 6. Upon remand, the Prescribed Authority, vide order dated 28.03.1980 held that the tenure holder was not possessed of any surplus area. The notice under Section 10(2) was withdrawn. 7. Against the order of the Prescribed Authority, the State preferred an appeal. The Additional Commissioner by his order dated 31.01.1989 allowed the appeal, set aside the order of the Prescribed Authority and remanded the matter for a fresh decision. The parties were directed to appear before the Prescribed Authority on 04.03.1989. 8. It is the case of the petitioners that their father, the tenure holder against whom the Ceiling proceedings have been initiated died on 11.02.1989. No notices were served upon the petitioners and the Prescribed Authority by an exparte order dated 29.09.1989 declared 7.41 acres of land to be surplus. 9. On coming to know of this order, the petitioners filed a restoration application on 09.11.1989. This restoration application was dismissed vide order dated 15.10.1992 holding that the heirs of the tenure holder had been served personally. 9. On coming to know of this order, the petitioners filed a restoration application on 09.11.1989. This restoration application was dismissed vide order dated 15.10.1992 holding that the heirs of the tenure holder had been served personally. Despite service of notice, they did not appear and therefore, the order was rightly passed against them. The consequential appeal was dismissed on 28.06.1995. Hence, this writ petition challenging the orders dated 28.06.1995 and 15.10.1992 dismissing the restoration application. 10. Sri Triveni Shankar, learned counsel for the petitioners has submitted that the two alleged witnesses of service of notice upon them have deposed before the Court that their signature/thumb impression as witnesses, on the notices, were forged and no notices have been served upon the petitioners, in their presence. Although, this aspect was argued, also before the appellate court, no finding in this regard has been returned. He therefore submits that the order which is admittedly exparte was liable to be recalled and the courts below have committed manifestly illegality in dismissing the restoration application and also the consequential appeal of the petitioners. 11. Sri Sanjay Goswami appearing for the State-respondents has submitted that the appellate Court has dismissed the appeal relying upon the statements of the process server and the peon. He submits that by implication, the statements made by the witnesses namely Doodh Nath and Samar Jeet have rightly been discarded for cogent reasons and therefore, the impugned orders call for no interference. 12. I have considered the submissions made by the learned counsel for the parties and have perused the record. 13. It is not in dispute that the Prescribed Authority has held that the petitioners are possessed of 7.41 acres of surplus land but the order is admittedly exparte. The Prescribed Authority finding that the petitioners had not appeared despite notice and as the State had proved its case, it has decided against the petitioners. 14. It is also clear that the Appellate Authority noticed the contention raised on behalf of the petitioners that the two witnesses in whose presence, the notice was alleged to have been served upon the petitioners, had denied their signature/thumb impression thereon, but has not recorded any specific finding in this regard. 15. In the said circumstance, therefore, I am of the considered opinion that the petitioners are entitled to an opportunity of hearing. 15. In the said circumstance, therefore, I am of the considered opinion that the petitioners are entitled to an opportunity of hearing. However, since the order of the Prescribed Authority dated 29.09.1989 declaring 7.41 acres of land to be surplus in the hands of the petitioners is not under challenge, it is appropriate that the matter be remanded back to the appellate authority to hear the petitioners and to pass appropriate orders on merits, after considering their case as also the evidence that may be available on record in support of their contentions. 16. Accordingly, I set aside the appellate order dated 28.06.1995 and remand the matter back to the respondent no. 1 to consider the merits of the petitioners claim on the basis of the evidence available on record so as to determine whether the order dated 29.09.1989 declaring 7.41 acres of land to be surplus in their hands is justified or not. Since the matter is an extremely old one. It is provided that the appellate court may decide the dispute in pursuance of the directions/observations made herein above expeditiously, preferebly within a period of three months from the date a certified copy of the order is filed before it. 17. Accordingly and in view of the above, this writ petition is allowed in part. The order dated 28.06.1995 is set aside and the matter is remanded back to the respondent no.1 for a fresh decision in the light of the above observations/directions. Petition Partly Allowed.