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2024 DIGILAW 1392 (ALL)

Devi Singh v. State of U. P.

2024-05-23

SARAL SRIVASTAVA

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JUDGMENT Saral Srivastava, J. Heard learned counsel for the appellant and Sri Vinod Kumar Sahu, Additional Chief Standing Counsel for the State- respondents. 2. The case of the petitioner is that he is tenure holder of plots No.1113, 349, 660A, 902, 1082, 932, 935 & 936 situated at village Kapil, District Fatehpur, plots No.9, 11, 32 & 87 situated at village Ashikpur, District Fatehpur, plots No.264, 423, 427 & 43 situated at village Amauli, District Fatehpur, plot No.65 situated at village Faizabad, District Fatehpur, plot No.120 situated at village Mangalpur Takauli, District Fatehpur and plot No.11, situated at village Sahbazpur Jaraiha,District Fatehpur. 3. It appears that a notice under Section 10 (2) of the UP Imposition of Ceiling and Land Holdings Act, 1960 (for short 'the Act, 1960') was issued to the petitioner for declaring the excess land as surplus land. 4. The petitioner submitted objection to said notice which was decided by the Prescribed Authority by order dated 11.02.1975. The petitioner being partly aggrieved by the said order of the Prescribed Authority, filed an appeal under Section 13 of the Act, 1960. 5. It appears that a cross appeal was also filed by the State of U.P. against the order of the Prescribed Authority dated 11.02.1975. The appeal of the State of U.P. preferred against the order of the Prescribed Authority dated 11.02.1975 was dismissed and the appeal preferred by the petitioner was allowed. 6. The State of U.P. being aggrieved by the order of the Appellate Authority preferred writ petition which was also dismissed by this Court on 23.10.1978. 7. The Appellate Authority declared 6.79 acres as surplus land in possession of the petitioner. It further transpires from the record that during the pendency of the writ petition, a notice under Section 31(3) of the Amended Act No.20 of 1976 was issued to the petitioner on 18.12.1975. 8. The petitioner submitted objection to the said notice which was decided on 31.01.1977. The Prescribed Authority, thereafter, redetermined the surplus land declaring 9.51 acres as surplus. 9. The petitioner being aggrieved by the order of the Prescribed Authority dated 31.01.1977, preferred an appeal under Section 13 of the Act, 1960 which was also decided by the Appellate Authority by order dated 08.07.1978. The Prescribed Authority, thereafter, redetermined the surplus land declaring 9.51 acres as surplus. 9. The petitioner being aggrieved by the order of the Prescribed Authority dated 31.01.1977, preferred an appeal under Section 13 of the Act, 1960 which was also decided by the Appellate Authority by order dated 08.07.1978. The Appellate Authority partly allowed the appeal and the case was remanded back by the Appellate Authority to the Prescribed Authority with specific direction to record a finding whether the plots situated at village Kapil are irrigated or non irrigated or partly irrigated. The Appellate Authority further directed the Prescribed Authority to record a finding whether the plots at village Kapil are situated within 16 Kms from mid stream of river Yamuna. 10. After remand, the Prescribed Authority again heard the matter and decided the same on 09.05.1979. The Prescribed Authority found that the plots situated at village Kapil are irrigated and they are beyond 16 Kms from mid stream of river Yamuna. Accordingly, the Prescribed Authority declared 9.51 acres surplus land. 11. Thereafter, the petitioner preferred application dated 30.10.1979 indicating his choice for declaration as surplus land. The said application was rejected by the Prescribed Authority by means of order dated 12.12.1979. 12. It further transpires from the present writ petition that the appeal preferred by the petitioner before the District Judge, Fatehpur was rejected on 07.04.1980. 13. The petitioner, thereafter, again preferred Writ Petition No.6267 of 1980 (Devi Singh v. State of U.P. & Others) which was allowed by this Court vide order dated 15.07.1981 and the Prescribed Authority was directed to decide the application of the petitioner dated 30.10.1979 indicating the choice under Section 12-A of the Act, 1960. 14. The petitioner, thereafter, filed an application under Section 13-A of the Act alleging that the order of the Prescribed Authority declaring surplus land of the petitioner is erroneous. 15. The application of the petitioner dated 26.04.1982 was rejected by the Prescribed Authority by order dated 27.09.1982. The relevant portion of the order dated 27.09.1982 is reproduced herein below:- 16. The petitioner being aggrieved by the aforesaid order, preferred appeal under Section 13 of the Act, 1960. 15. The application of the petitioner dated 26.04.1982 was rejected by the Prescribed Authority by order dated 27.09.1982. The relevant portion of the order dated 27.09.1982 is reproduced herein below:- 16. The petitioner being aggrieved by the aforesaid order, preferred appeal under Section 13 of the Act, 1960. It transpires from the order of the Appellate Authority that two contentions were advanced before the Appellate Authority; that notice under Section 31(3) of the Amended Act No.20 of 1976 was illegal and bad in law because the writ petition against the first notice was pending before this Court; second contention urged was that the notice under Section 31 of the Amended Act No.20 of 1976 was bad for the reason that the proceeding for re-determination of surplus land under Section 31(3) of the Amended Act No.20 of 1976 was issued after expiry of the period of two years from the date of first order i.e. 10.10.1975 passed by the Prescribed Authority. 17. The first contention with regard to the maintainability of proceeding on the ground that the proceeding under Section 31 (3) of the Amended Act No.20 of 1976 initiated during the pendency of the writ petition was repelled by the Appellate Authority by recording a finding that reading of Section 31 (3) of the Amended Act No.20 of 1976 suggests that notice under Section 31 (3) of the Amended Act No.20 of 1976 could be issued within two years from the date order has been passed by the Prescribed Authority even if any appeal is pending against the order of the Prescribed Authority, and in the present case second notice has been issued within two years from the date of first order i.e. 10.10.1975 of Prescribed Authority, therefore, pendency of writ petition was not a bar for issuing second notice under Section 31 (3) of the Amended Act No.20 of 1976. 18. The second contention was also rejected by the Appellate Authority by recording the following finding:- "The provisions of Section 31(3) of the aforesaid Amending Act No.20 of 1976 imposes the time limit of two years only on the prescribed authority who issued the notice for re-determination of the surplus land that he should conclude the proceedings and re-determination of the surplus land within a period of two years from the said date i.e. 10.10.75. In the present case, according to the own argument of the learned counsel for the appellant the learned prescribed authority decided the case and determined 9-51 acres surplus land on the second notice on 31.1.77 i.e. within a period of two years from the said date i.e. 10.10.75. The subsequent proceeding in this case after this decision were held because the tenure holder had filed appeal against that order and the case was remanded by the appellate court. Therefore, it cannot be said that present proceedings of the case stood annulled after the period of two years. Therefore, I do not agree with the argument of the learned counsel for the appellant that the present proceeding for redetermination of the surplus land stood annulled after the period of two years and determination of the surplus land is unwarranted by law. The result is that I do not find any illegality in the impugned order rejecting the application of the appellant u/s 13-A of the Act and confirming the previous declaration of the surplus land. The appeal has, therefore, no force and is liable to be dismissed. ORDER The appeal is hereby dismissed with costs. SD/- P.K. Nigam 13.12.84." 19. The order dated 27.09.1982 in Case No.59 passed by the Prescribed Authority rejecting the application of the petitioner dated 26.04.1982 (Annexure 3 to the writ petition) and the order dated 13.12.1984 passed by the Appellate Authority rejecting the appeal of the petitioner are impugned in the present writ petition. 20. Challenging the aforesaid orders, learned counsel for the petitioner has contended that in the present case, the land of the petitioner is situated within 16 Kms from mid stream of river Yamuna and thus, it cannot be declared as surplus land. It is submitted that the authority below has erred in law in rejecting the application of the petitioner by order dated 27.09.1982 on misconceived ground inasmuch as there was ample evidence on record which established that the land situated in village Kapil owned by the petitioner was within 16 Kms from mid stream of river Yamuna, therefore, the orders impugned cannot be sustained and are liable to be set aside. 21. 21. Per contra, learned Additional Chief Standing Counsel would contend that it is evident from the order passed by the Appellate Authority that no ground was pressed by the petitioner before the Appellate Authority that since the land of the petitioner is situated within 16 Kms from the mid stream of river Yamuna, therefore, the land of the petitioner cannot be declared as surplus land. It is further submitted that it is not open for the petitioner to assail the order of Appellate Authority on a ground which was never pressed by him before the Appellate Authority. It is contended that there is no pleading in the writ petition to the fact that the ground which is being urged here had been pressed before the Appellate Authority and the same was not considered by the Appellate Authority. It is further submitted that in absence of any such pleading, the ground which is being urged by the petitioner cannot be raised before this Court. 22. I have considered the rival submissions of the parties and perused the record. 23. The sole ground on which the orders have been assailed by the petitioner in the present writ petition is that the land of the petitioner is within 16 Kms from mid stream of river Yamuna. The order passed by the Appellate Authority reveals that the petitioner urged only two grounds in challenging the order passed by the Prescribed Authority which have been delineated above. Though the memo of appeal enclosed with the writ petition discloses the ground, which has been urged before this Court, was set out in the memo of appeal, but the order passed by the Appellate Authority discloses that the said grounds was not pressed before it inasmuch as the Appellate Authority recorded a specific finding that only two contentions were raised by the petitioner before it. There is no pleading in the writ petition to the effect that the ground that since the land of the petitioner falls within 16 Kms from mid stream of river Yamuna, therefore, the said land cannot be declared as surplus land which is being urged here by the petitioner was pressed before the Appellate Authority, and the Appellate Authority failed to consider the same nor any certificate issued by the counsel, who argued before the Appellate Authority, was brought on record certifying that he had pressed and argued aforesaid ground before the Appellate Authority but he did not consider it. 24. In view of the aforesaid fact, it is not open to the petitioner to assail the order passed by the Appellate Authority in the writ petition on the ground that the land of the petitioner falls within 16 Kms from the mid stream of river Yamuna, therefore, it cannot be declared as surplus. 25. For the reasons given above, the writ petition lacks merit and is accordingly, dismissed with no order as to costs.