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2020 DIGILAW 23 (ALL)

Samarjeet Singh v. State of U. P.

2020-01-03

SANGEETA CHANDRA

body2020
JUDGMENT : Sangeeta Chandra, J. 1. This petition has been filed challenging the order dated 17.6.2017 passed by the Appellate Authority. 2. The respondent No. 3 decided the Appeal filed by the petitioner and also the Appeal filed by the State of U.P. against the order passed by the Prescribed Authority. 3. The facts of the case, in brief, are that certain plots of land situated in Village Waslipur, Tehsil Lakhimpur Kheri, were proposed to be declared surplus under section 10(2) of the Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960 and notice in this regard was issued on 15.5.1974 to the petitioner' predecessor-in-interest Sri Venkateshwar Singh. Sri Venkateshwar Singh filed his objections claiming the entire land as unirrigated and also claiming that certain land ad-measuring 25 acres should also not be considered as cultivable land as it remained submerged in the river and no cultivation was possible thereon. Certain land was also claimed to be covered by the residential houses and cattle sheds and fit to be exempted on this ground. 4. The Prescribed Authority framed certain issues and decided the case on 30.06.1986 against the petitioner on all issues except for one which related to plot No. 939 min. ad-measuring 36.70 acres. With regard to the another plot, namely, plot No. 338, the Prescribed Authority did not adjudicate at all. Sri Venkatashwar Singh filed an Appeal against the judgment of the Prescribed Authority dated 30.06.1986. The Collector Kheri also filed the Appeal Challenging the finding of the Prescribed Authority regarding plot No. 939 min. The Appellate Authority by its order dated 2.2.1994 allowed the Appeal filed by the State and dismissed the Appeal filed by the petitioner. As a consequence of such order, nearly 52 acres of land of the petitioner's predecessor-in-interest was declared as surplus. The petitioner's predecessor in interest filed a Writ Petition No. 46 (Ceiling) of 1994. This Court allowed the said writ petition and set aside the order of Prescribed Authority and that of the Appellate Authority and remanded the matter to the Appellate Authority to decide the Appeal afresh after giving opportunity of hearing to all the concerned. 5. It has been submitted by learned Counsel for the petitioner that the order passed by this Court dated 18.5.2009 as corrected on 29.11.2010 was violated by the Appellate Court while passing the order impugned dated 17.6.2017. 5. It has been submitted by learned Counsel for the petitioner that the order passed by this Court dated 18.5.2009 as corrected on 29.11.2010 was violated by the Appellate Court while passing the order impugned dated 17.6.2017. By the order dated 17.6.2017, the Appeal of the petitioner has been partly allowed and the Appeal filed by the Collector, Kheri has been dismissed and the matter has been remanded to the Prescribed Authority to give a finding with regard to certain gatas of land and their nature to be determined by the Prescribed Authority to be irrigated or not. 6. It has been further submitted that such order could not have been passed by the Appellate Authority remanding the matter to the Prescribed Authority to consider afresh as this Court in its judgment and order dated 18.5.2009 as corrected on 29.11.2010 has directed the Appellate Court alone to decide the matter on merits. 7. This Court has carefully perused the judgment dated 18.5.2009 as corrected on 29.11.2010 in Writ Petition No. 46 (Ceiling) of 1994. 8. Learned Counsel for the writ petitioner therein has submitted that no documentary evidence has been placed by the State of U.P. showing that land was cultivable land and the Prescribed Authority also failed to give any finding with regard to the certain land being not fit for cultivation as claimed by the petitioner. 9. Learned Counsel for the writ petitioner has also argued that the Appellate Authority committed an error in reversing the findings of the Prescribed Authority and therefore, this Court quashed the order passed by the Prescribed Authority dated 30.06.1986 and also the order passed by the Appellate Authority dated 02.02.1994 and remanded the matter to the Appellate Authority to decide afresh after affording due opportunity of hearing to all the parties concerned. 10. When this writ petition was filed, this Court had directed the learned Standing Counsel for the State to seek instructions. The instructions dated 17.4.2019 have been produced before this Court by the learned Standing Counsel which are kept on record. 11. From a perusal thereof, it is evident that in the writ petition filed by Sri Venkateshwar Singh, this Court had passed an order dated 18.5.2009 and 29.11.2010 thereby setting aside both the orders and remanded the matter to the Appellate Authority to consider afresh. 11. From a perusal thereof, it is evident that in the writ petition filed by Sri Venkateshwar Singh, this Court had passed an order dated 18.5.2009 and 29.11.2010 thereby setting aside both the orders and remanded the matter to the Appellate Authority to consider afresh. In pursuance of such order passed by this Court, the Appellate Authority gave opportunity of hearing to both the parties and passed a reasoned and speaking order dated 17.06.2017. The Appeal filed by the Venkateshwar Singh substituted by Naurang Singh was partly allowed and the Appeal filed by the Collector, Kheri was dismissed. The matter was remanded to the Prescribed Authority to consider afresh the issue whether land claimed by the petitioner as unirrigated was irrigated at the time when the order was initially passed declaring the same to be surplus. 12. At this juncture, learned Counsel for the petitioner has submitted that the interim order passed by this Court says that the Appellate Authority could not have decided the matter and remanded to the Prescribed Authority. 13. The interim order passed by this Court can only be said to be a prima facie opinion on the basis of the pleadings and arguments made by the writ petitioner without the true facts and circumstances being placed by the learned Counsel for the respondent on the basis of instructions. Since instructions have come and those instructions are absolutely clear with regard to why the matter has been remanded, the interim order on which reliance has been placed by the learned Counsel for the petitioner cannot said to be binding upon this Court when this Court is finally deciding the matter. 14. It has further been stated in the said instructions that the writ petitioner herein have stopped appearing before the Prescribed Authority altogether and therefore the Prescribed Authority has been unable to decide the matter after its remand to it. 15. Learned Standing Counsel had additionally submitted that in the order impugned dated 17.06.2017, a specific direction has been issued to the Prescribed Authority to consider Rule 4-A and the revenue records of the year 1378, 1379 and 1380 Fasli and then pass appropriate orders after making inspection also. 15. Learned Standing Counsel had additionally submitted that in the order impugned dated 17.06.2017, a specific direction has been issued to the Prescribed Authority to consider Rule 4-A and the revenue records of the year 1378, 1379 and 1380 Fasli and then pass appropriate orders after making inspection also. The question with regard to whether the land claimed by the petitioner was irrigated or unirrigated and the possession of the spot with respect to the field book of the 1378 to 1380 Fasli can only be determined by the Prescribed Authority and not by the Appellate Authority, therefore, the matter has been remanded to the Prescribed Authority by the Appellate Authority. 16. This Court is of the considered opinion that the writ petition has been filed on misconceived grounds that this Court's order dated 18.5.2009 has been violated. 17. The writ petition is dismissed. 18. The petitioners are directed to put in appearance before the Prescribed Authority and place all evidence in their possession with regard to their claim of irrigated or unirrigated land.