JUDGMENT : Devendra Kumar Upadhyaya, J. Since subject matter of these two petitions are the same orders passed by the Prescribed Authority and the Appellate Authority respectively under the Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960 (hereinafter referred to ''Ceiling Act') in respect of the same land, with the consent of learned counsel for respective parties, they are being decided by the common judgment and order. 2. Heard Sri Prashant Kumar Singh, learned counsel for the petitioners in Writ Petition No. 45 (Ceiling) of 2000 and Sri Ajay Pratap Singh, learned counsel representing the petitioner in Writ Petition No.135 (Ceiling) of 2003. Learned Standing Counsel has also been heard on behalf of the State-respondents. 3. It has been argued by learned counsel for the petitioners that the order dated 30.06.1997 passed by the Prescribed Authority as also the order dated 13.06.2000 passed by the appellate court are absolutely unlawful and in fact the same run contrary to law laid down by this Court in the case of Baboo Ram vs. First Additional District and Sessions Judge, Basti and others, reported in 1978 (4) Allahabad Law Report, 528. It has further been argued by learned counsel for the petitioners in both petitions that the order passed by the Assistant Consolidation Officer on 19.09.1978 under Section 9-A of U.P. Consolidation of Holdings Act whereby Smt Asha Devi-petitioner of Writ Petition No.135 (Ceiling) of 2003 was declared to be co-sharer along with Akshaibar Singh, the predecessor-in-interest of the petitioners in Writ Petition No.45 (Ceiling) of 2000, will not amount to transfer in terms of the provisions contained in Section 5 (7) of the Ceiling Act and as a matter of fact, the same is not covered by the First explanation appended to Section 5 (6) of the Ceiling Act, however the learned courts below have completely ignored the said provisions and have erred in law in declaring the land as surplus. 4. 4. On the other hand, learned Standing Counsel representing the State has categorically submitted that there is no illegality in the order passed by the Prescribed Authority on 30.06.1997 as also in the order dated 13.06.2000 passed by the appellate court, inasmuch as what this Court while deciding Writ Petition No.474 of 1978 vide its judgment and order dated 15.10.1979 had left open to the Prescribed Authority was the issue relating to land being irrigated or unirrigated and certain land being grove and further in respect of reduction of area in the consolidation proceedings and accordingly the Prescribed Authority has rightly not considered the effect of the order dated 19.09.1978 passed by the Assistant Consolidation Officer. He has further stated that in terms of the order dated 15.10.1979 passed by this Court while allowing the Writ Petition No.474 of 1978, the appellate court vide its order dated 07.08.1980 has clearly directed the Prescribed Authority to consider the aforesaid three issues and as such the Prescribed Authority under the terms of remand order passed by the appellate court on 07.08.1980 was under obligation to confine consideration of the issues in terms of the said order alone. 5. The following pedigree is relevant to be noticed for the purpose of proper adjudication of the issue involved in these matters. Suhail Singh Akshaivar Singh (died issueless) Lakh Raj Singh Mst Lakhraj Kunwar (widow) Smt Asha Devi (married daughter) (respondent no.3) B.P.N Singh, (petitioner no.1) AP.N Singh, (petitioner no.2) A.P.N. Singh, (petitioner no.3) J.P.N. Singh, (petitioner no.4) G.P.N. Singh, (petitioner no.5) [petitioners 1 to 5 claim devolution of their rights on the basis of will dated 11.02.1995] 6. A notice under Section 10 (2) of the Ceiling Act was issued in the year 1974 against Akshaibar Singh, the predecessor-in-interest of the petitioners, who filed his objection/reply to the said notice on 21.11.1974 taking various pleas which were inter alia that there are certain land which are abadi land and have wrongly been included in the land of Akshaibar Singh and that there are certain other co-sharer holders in the land whose land has been included while issuing the said notice and while preparing the Form CLH-3 and that most of the land, which is the subject of the notice issued to him under Section 10 (2) is abadi, grove land, unirrigated and not fit for agricultural purposes. The said objection, however, was considered by the Prescribed Authority who vide its order dated 17.06.1977 declared an area of 10.252 acres as surplus land whereas ceiling area of Akshaibar Singh was determined to be 18.038 acres. Akshaibar Singh filed appeal against the order dated 17.06.1977 passed by the Prescribed Authority which was dismissed by the appellate court vide its judgment and order dated 01.11.1977, against which a Writ Petition bearing No.474 of 1978 was filed by him which was allowed on 15.10.1979 and the matter was remanded. 7. At this juncture, it may be relevant to observe that this Court while allowing the Writ Petition No.474 of 1978 vide its order dated 15.10.1979 not only set-aside the order passed by the Prescribed Authority and the District Judge but directed the District Judge to re-admit the appeal and decide the same afresh in the light of the observation made in the said judgment. 8. Learned appellate court, on remand, decided the appeal vide its judgment and order dated 07.08.1980 and allowed the same setting aside the judgment and order passed by the Prescribed Authority and remitting the matter back to him for re-decision in accordance with the observations made in the said judgment dated 07.08.1980 and also in the judgment of this Court dated 15.10.1979. The appellate court while passing the judgment dated 07.08.1980 has clearly noted that an application was moved for filing certain documents having bearing on the points involved in the matter but it was found by the appellate court that it will not be convenient and possible to make adjudication upon the points raised by the predecessor-in-interest of the petitioners by the appellate court as the law requires the Prescribed Authority and not the appellate court to go through the original khasra etc. and make spot inspection, if necessary. The appellate court thus, observed that the first two points, namely, (1) that some land has wrongly been shown as grove land, and (2) that some land has wrongly been shown as irrigated land be sent to the Prescribed Authority for decision afresh after taking such further evidence as the parties may desire to lead and giving a finding on such points as Section 4-A of the Act requires. Regarding the third point in relation to the effect of reduction of area in consolidation proceedings, the appellate court provided that if the predecessor-in-interest of the petitioners wished to press the said points, he may do so after amending the objection and filing necessary details and if such amendment is sought, the same will be considered by the Prescribed Authority. 9. The Prescribed Authority thereafter considered the matter again in view of the order of remand dated 07.08.1980 passed by the appellate court and also considered the order dated 19.09.1978 passed by the Assistant Consolidation Officer whereby Smt Asha Devi, the petitioner in Writ Petition No.135 (Ceiling) of 2003, was declared to be co-sharer in the land in question and accordingly accepted the objection filed by the tenure holder and while discharging the notice issued under Section 10 (2) of the Ceiling Act, passed an order on 09.08.1984 declaring that no land belonging to tenure holder is liable to be declared surplus. 10. The State authorities however, challenged the said order passed by the Prescribed Authority under Section 13 of the Ceiling Act by filing an appeal before the appellate court which allowed the appeal by means of the order dated 28.02.1995 and set-aside the order dated 09.08.1984 passed by the Prescribed Authority and remitted the matter again to the Prescribed Authority for decision on only three issues, namely, (1) whether some land of the tenure holder is grove land, (2) whether certain land which is unirrigated has been shown to be irrigated and (3) what would be the effect on ceiling proceedings of the area reduced during consolidation operations. 11. The appellate court while passing the order dated 28.02.1995 has taken aid of order dated 07.08.1980 passed by the appellate court earlier and has recited that the said appellate order remitted the matter back to the Prescribed Authority only on decision on three aforesaid issues and has thus observed in the order dated 28.02.1995 that the impact of the order dated 19.09.1978 passed by the Assistant Consolidation Officer was not an issue on which the matter was remitted to the Prescribed Authority by the appellate court vide its order dated 07.08.1980. 12. 12. In this view, inference drawn by the appellate court while passing the order dated 28.02.1995 is that the Prescribed Authority while passing the order dated 09.08.1984 had exceeded the terms of remand as postulated by the appellate court vide order dated 07.08.1980. The Prescribed Authority thus again considered the matter on remand made by the appellate court vide its order dated 28.02.1995 and has passed the impugned order dated 30.06.1997 whereby the claim of the petitioners in respect of half share of the entire holding having been ordered to be recorded in the name of Smt Asha Devi vide order dated 19.09.1978 passed by the Assistant Consolidation Officer has not found favour with the Prescribed Authority. The appellate court while hearing and deciding the appeal against the order dated 30.06.1997 has also rejected the claim of the petitioner while passing the impugned order dated 30.06.2000. Having regard to the various submissions made on behalf of learned counsel representing the respective parties and having gone through the record available on these two writ petitions, what I find is that there are two issues which need consideration by this Court in these matters and the issues are (i) as to whether the Prescribed Authority while passing the order dated 09.08.1984 had exceeded the terms of remand as determined by the appellate court vide order dated 07.08.1980 and (ii) as to whether the declaration of Smt Asha Devi as co-sharer in the holding in dispute by the Assistant Consolidation Officer, vide his order dated 19.09.1978 passed under Section 9 of the U.P. Consolidation of Holdings Act would have the impact of notice issued to the original tenure holder being discharged and as to whether such declaration is hit by the provision contained in Section 5 (6) or the First explanation appended to Section 5 (6) of the Act. 13. So far as the first issue regarding the terms of remand is concerned, the order dated 07.08.1980 passed by the appellate court is very clear and does not contain any ambiguity whatsoever. The appellate court has clearly taken into account the fact that the predecessor-in-interest of the petitioners had moved an application to file certain document having bearing on the point involved in the matter and that the said application included the order dated 19.09.1978 passed by the Assistant Consolidation Officer. The appellate court has clearly taken into account the fact that the predecessor-in-interest of the petitioners had moved an application to file certain document having bearing on the point involved in the matter and that the said application included the order dated 19.09.1978 passed by the Assistant Consolidation Officer. In respect of said point, the appellate court while passing the order dated 07.08.1980 was of the view that it will be more appropriate if objection based on the application is moved by the predecessor-in-interest of the petitioners before the Prescribed Authority, then decision on such issues will be in terms of the provisions contained in the said Act for the reason that under the Act, it is the Prescribed Authority who has to give its finding as an authority of the first instance empowered to determine the issue relating to said effect. 14. It is in this light that objections were got amended by the predecessor-in-interest of the petitioners before the Prescribed Authority and the order dated 19.09.1978 passed by the Assistant Consolidation Officer was clearly brought to its notice, as is apparent from perusal of the order dated 09.08.1984 passed by the Prescribed Authority wherein a categorical finding has been recorded that the predecessor-in-interest of the petitioners had not only produced CH Form 23 and 45 and khasra pertaining to 1378-1380 fasli but also the order dated 19.09.1978 passed by the Assistant Consolidation Officer. Accordingly, the Prescribed Authority has rightly considered the effect of the said judgment dated 19.09.1978 passed by the Assistant Consolidation Officer and it cannot be said that the Prescribed Authority had exceeded the terms of the remand while deciding the matter afresh vide its judgment dated 09.08.1984 which was decided by him pursuant to the order of remand dated 07.08.1980 passed by the appellate court. The first issue is decided accordingly. 15. So far as the issue relating to impact of the order dated 19.09.1978 passed by the Assistant Consolidation Officer is concerned, it may only be observed that the said order was passed on commencement of consolidation proceedings in the village where the land in question is situated. 16. The first issue is decided accordingly. 15. So far as the issue relating to impact of the order dated 19.09.1978 passed by the Assistant Consolidation Officer is concerned, it may only be observed that the said order was passed on commencement of consolidation proceedings in the village where the land in question is situated. 16. It was the case set up by the petitioners that as a matter of fact, after the death of Lakhraj Singh, the half of the share coming down from the common ancestor Suhail Singh was inherited by Mst Lakhraj Kunwar whose name was mutated in the relevant revenue record but in terms of the provision contained under Section 171 of U.P.Z.A & L.R.Act, in fact Smt Asha Devi was also the co-sharer, however she being minor at that point of time, her name could not be mutated in the revenue records. 17. It has also been the case of the petitioners that on the death of Mst Lakhraj Kunwar, the widow of Lakhraj Singh, the land in question was got mutated in the name of Akshaibar Singh though Smt Asha Devi, her daughter was alive. It is in these circumstances that at the time of issuance of notice under Section 10 (2) of the Ceiling Act, the entire holding was found recorded in the name of noticee i.e Akshaibar Singh, though after the death of Lakhraj Singh and thereafter on the death of Mst Lakhraj Kunwar, Smt Asha Devi ought to have been recorded so far as share of Lakhraj Singh is concerned. 18. In these circumstances, a dispute under Section 9-A of U.P. Consolidation of Holdings Act was raised by Smt Asha Devi before the Assistant Consolidation Officer which was decided by him on the basis of conciliation vide judgment and order dated 19.09.1978 wherein she has been held to be the co-sharer in the property in question and accordingly once Smt Asha Devi has been held to be co-sharer, the total area which comes in the share of Akshaibar Singh got reduced i.e. below the ceiling area and hence no proceeding ought to have been continued against him under the Ceiling Act. 19. 19. The question as observed above which falls for consideration is as to whether such an order passed by the Assistant Consolidation Officer on 19.09.1978 under Section 9-A of U.P. Consolidation of Holdings Act will amount to any transfer in terms of the provisions contained in Section 5 (6) of the Act and thus will be hit by the said provision and as to whether the order dated 19.09.1978 passed by the Assistant Consolidation Officer will be covered by the First explanation appended to sub-section (6) of Section 5 of the Ceiling Act with the effect that the land falling in the share of Smt Asha Devi on the basis of the said order dated 19.09.1978 passed by the Assistant Consolidation Officer shall not be excluded from the total holding of Akshaibar Singh. 20. The aforesaid issue is no more res integra as this Court in the case of Baboo Ram (supra) has clearly held that the orders passed by the consolidation authorities either under Section 9-A (2) of U.P. Consolidation of Holdings Act or by the appellate court or revisional court under the said Act will not qualify to be declaration of a person as co-tenure holder made after 24th day of January, 1971 in a suit or proceedings. 21. The reasons given by this Court in the said judgment are noticeable. 22. It has been stated by the Court in the said judgment that the consolidation courts under Section 9-A (2) of the Act or the appellate court or revisional court under the said Act do not declare any new right of any tenure holder or a person. The Court further has clearly held that any order passed under Section 9-A (2) by the appellate court or by the revisional court under the U.P. Consolidation of Holdings Act, in fact only, recognizes pre-existing rights of a tenure holder, that is to say, if pre-existing right, which existed prior to 24th January, 1971, is being only recognized, the question of such an order being hit either by explanation-1 of sub-section (6) of Section 5 of the Act or by Section 5 (6) of the Act, does not arise at all. The Court in the said judgment has clearly drawn distinction between declaration of new right and recognition of a pre-existing right. 23. The Court in the said judgment has clearly drawn distinction between declaration of new right and recognition of a pre-existing right. 23. The Prescribed Authority as also the appellate authority in the instant case has thus, wrongly held that the order dated 19.09.1978 passed by the Assistant Consolidation Officer could not be taken into account for the purposes of excluding the land in respect of which Smt Asha Devi was declared to be co-sharer during consolidation proceedings. The finding recorded and view taken by the Prescribed Authority as also by the appellate court is thus not only against the provisions contained in Section 5 (6) of the Ceiling Act but is also contrary to law laid down by this Court in the case of Baboo Ram (supra). 24. In view of the discussions made and reasons given above, both the petitions are allowed. The order dated 30.06.1997 passed by the Prescribed Authority, Gonda in Case No.90/45/14/26; State vs. Akshaibar Singh under Section 10 (2) of Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960, and the appellate order dated 30.06.2000 passed by the Additional Commissioner (Administration) Faizabad Division, Faizabad in Appeal No.64/192-Gonda; Brijesh Pratap Narayan Singh and others vs. State of U.P., as contained in annexure nos.10 and 1 respectively to the Writ Petition No.45 (Ceiling) of 2000, are hereby quashed. 25. The order dated 19.03.2002 passed by the Additional Commissioner (Administration) Faizabad Division, Faizabad in Appeal No.86/203/208-Gonda, under Section 13 of Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960 on the restoration application, as contained in annexure no.5 in Writ Petition No.135 (Ceiling) of 2003, is also hereby quashed. 26. Consequences to follow. 27. The parties will bear their own cost.