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2022 DIGILAW 813 (ALL)

Sant Bux Singh v. Additional Commissioner Lucknow

2022-05-20

SHREE PRAKASH SINGH

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JUDGMENT : Shree Prakash Singh, J. 1. Heard Sri Jitendra Kumar Pandey, learned counsel for the petitioners, Sri K.K. Singh, learned counsel appearing for the State and perused the record. 2. Instant writ petition has been filed assailing the order dated 13th December, 2001 passed by opposite party No. 2 as well as the order dated 26th February, 2003 passed by the respondent No. 1. 3. Learned counsel for the petitioners submits that notice under Section 10(2) was issued to the present petitioners and thereafter objection was filed by the petitioners and after considering the aforesaid, the prescribed authority passed the order on 31st March 1979 whereby the objection of the petitioners was rejected. 4. He added that thereafter, he preferred an appeal before the appellate authority raising grievance on three grounds. First, holdings of one of the cousin sister namely Savita Devi was also included in the holdings of the present petitioner which has wrongly been done and second objection with regard to 12 gatas land which was said to be water logging area and that too was not considered by the prescribed authority and third one is that son of the original tenure holder namely Babu Singh was major on 8.6.1973 and two hectares land was not excluded while considering the surplus land. 5. He submits that considering the facts and circumstances of the case and after perusal of record, the appellate authority passed the order wherein the appeal was partly allowed on two grounds and one of the ground with regard to the part of major son was rejected. 6. Being aggrieved from the aforesaid part of the order, the petitioner filed a case bearing Writ Petition No. 3027 of 1980 (Babu Singh vs. State of U.P. and Others) wherein this Court has passed the order on 15th February, 1988. The operative portion of the order is as follows; ''The writ petition is allowed and the order passed by the appellate Court dated 26.7.1980 is quashed with the direction that the petitioner is entitled to two hectares more land for his elder son. That it is being made clear that this opinion does not mean that the state is prohibited from taking any further proceedings in this behalf on the ground of acquisition of more land or any due similar ground permissible under law.'' 7. That it is being made clear that this opinion does not mean that the state is prohibited from taking any further proceedings in this behalf on the ground of acquisition of more land or any due similar ground permissible under law.'' 7. In the opening paragraph of the aforesaid judgement, the Court has taken into account of only one question, which was wrongly decided by the appellate authority as the issue with regard to the major son was not considered and it has been held that petitioner is entitled to be excluded two hectares more land for his major son. He submits that thereafter prescribed authority considered all three questions and has passed the order affirming his earlier order dated 31st March, 1979. 8. He submits that being aggrieved by the aforesaid order, the petitioners preferred an appeal bearing No. 17/1990-91, the appellate Court after hearing the matter set aside the order passed by the prescribed authority and remanded back to the prescribed authority after a categorical finding in favour of the petitioners. After remanding back of the matter, the prescribed authority heard the matter and decided the same vide order dated 13th December, 2001 wherein he again reiterated the order passed on 31st March, 1979 and has rejected the three pleas raised by the petitioners over there. Again the petitioners being aggrieved filed an appeal before the appellate authority bearing appeal No. 10 of 2001-02, wherein the appellate Court dismissed the appeal and has affirmed the order passed by the prescribed authority. He submits that instant writ petition, therefore, has been filed as prescribed authority as well as appellate authority did not consider the three pleas raised before him. 9. Learned counsel for the petitioners submits that, in fact, two questions which were raised in first appeal is that the area of the land of one Savitri Devi which was included while deciding the surplus land with the land of the present petitioners as well as second ground which was with regard to water logging area of 12 gata was finalized by the order dated 26th July, 1980 passed by this Court and this question was not open before the prescribed authority to be decided. Being aggrieved by the order passed by the appellate Court dated 26th July, 1980, he challenged the same on the ground that one of the question which was decided negatively i.e. two hectares land of major son was dealt with by Hon'ble High Court in Writ petition and that was decided in favour of the petitioner and as such it was not open to the prescribed authority to decide thereafter. He submits that, in fact, the prescribed authority was adamant to pass the order and therefore even after the orders passed by the appellate authority and this Court, he has reiterated the order dated 31st March, 1979 in all his order passed thereafter. He also argued that the appellate authority by order dated 26th July, 1980 has decided the two issues and that too was never challenged by the State respondent at any stage and that too finalised against the State. 10. On the other hand, learned counsel appearing for the State has very vehemently opposed the contention aforesaid and submits that, in fact, so far as three issues are concerned that could not have been substantiated by the petitioner as he was failed to produce any record including the pariwar registrar, academic record and other records and as such the petitioner itself has become failed to prove the plea raised by him regarding the exclusion of two hectare of area while computing the land for the purpose of surplus land. 11. He also argued that in fact the appellate authority has rightly passed the order as the petitioners have failed to substantiate their claim by way of any evidence or witness as such there is no illegality in the order passed by the appellate authority. 12. Having heard the learned counsel for the parties and after perusal of record, it is evident that question regarding exclusion of the land of two hectares, has not been assailed by the State. Further second plea which was raised before the appellate authority and was decided in favour of the petitioners that too was not challenged by the State at any stage. Further the finding of the learned appellate Court as well as prescribed authority are perverse and the material facts has been left to be considered. 13. Further second plea which was raised before the appellate authority and was decided in favour of the petitioners that too was not challenged by the State at any stage. Further the finding of the learned appellate Court as well as prescribed authority are perverse and the material facts has been left to be considered. 13. In view of the aforesaid, the order dated 13th December, 2001 passed by the opposite party No. 2 as well as the order dated 26th February, 2003 passed by opposite party No. 1 are hereby set aside. 14. Accordingly, the writ petition is allowed. 15. The matter is remanded back to the prescribed authority to decide the matter afresh after calling objection from concerned parties, within a period of four months from the date a certified copy of this order is produced before him, in accordance with law. 16. The interim protection dated 27.3.2003 granted by this Court in the instant writ petition shall remain in force till the matter is finally decided by the prescribed authority.