JUDGMENT : (Irshad Ali, J.) 1. Heard Sri Rajiv Srivastava, learned Additional Chief Standing Counsel for the petitioner - State and Sri Virendra Mishra, learned counsel for respondent Nos.3, 4 & 6. 2. By means of present writ petition, the judgment and order dated 30.03.2000 passed by the Additional Commissioner - respondent No.1 (annexure 1 to the writ petition) has been challenged, whereby the appeal preferred by respondent Nos.3 to 6 has been allowed setting aside the order dated 31.03.1999 passed by the prescribed authority and further notice under Section 10(2) of U.P. Imposition of Ceiling on Land Holdings Act 1960 has been issued. 3. The present dispute in the instant writ petition pertains to the nature of land being irrigated and un-irrigated in respect of following villages: Village Irrigated Unirrigated Grove Total Kalawa ri Gata No. Area Gata No. Area Gata No. Area 822 .635 822 .975 941A,B 21.181 823 .293 670 1.123 826 .385 833 2.618 709 .997 812 .028 779 .721 989 .245 662 .042 Total 5 25.678 1.242 1.723 27.195 Gawarkha 12M 1.290 10 .457 54A .018 54A .126 54B 1.146 99M 3.139 65 1.406 Total 10.853 3.139 1.406 4. A notice dated 14.10.1976 under Section 10(2) of U.P. Imposition of Ceiling on Land Holdings Act was served on the tenure holder - Ram Adhar Singh (since deceased) in respect of disputed land and the prescribed authority (Ceiling), Nanpara, after due proceeding, declared an area of 10.730 acres of land in terms of irrigated land, as surplus land vide judgment and order dated 31.01.1977. 6. Against judgment and order dated 31.01.1977, the tenure holder preferred an appeal before the District Judge, Bahraich, which was allowed vide judgment and order dated 27.04.1977 and declared only an area of 1.016 acres of land as surplus land treating the disputed land as unirrigated land. 7. Subsequently, certain land of tenure holder became irrigated on account of Saryu Lift Canal System having been constructed, the tenure holder was served with a notice dated 30.11.1985 along with C.L.H. form 3Ka, 3Kha, 3Ga, 3Kaka adn C.L.H.-4 calling upon him to show cause as to why 16.342 acres of land out of a total of 45.817 acres of land be not declared as surplus land. 8. 8. Similar notices under Section 10(2) read with Rule 8 were also served on Sri Ranjit Singh, Bhanu Pratap Singh, sons of Ram Adhar Singh and Smt. Shubha Singh, wife of Dinesh Pratap Singh, son of Ram Adhar Singh, as the land recorded in their name was clubbed with the land of Ram Adhar Singh. 9. Ram Adhar Singh and his son Bhanu Pratap Singh as well as Smt. Shubha Singh -wife of Dinesh Pratap Singh, filed their objections dated 01.01.1986 against the said notice. On the basis of pleadings, the prescribed authority framed as many as six issues on 15.03.1986. 10. In support of the petitioners, Sri Nasir Ahmad, Bhulekh Nirikshak, Jaitapur (the then Lekhpal of Village Kalwari, Nanpara) and Sri Ram Pheran, Lekhpal, who stated in their statement on oath that the land shown irrigated in the notice under Section 10(2) in respect of village Kalwari and Gawarkha is being irrigated from the tubewell and canal and accordingly the details shown in the said C.L.H. froms have been mentioned. They also stated that the entire land is in possession of Ram Adhar. 11. On behalf of tenure holder Ram Adhar Singh, a copy of objections dated 26.10.1976 filed in response to the notice under Section 10(2) in the earlier proceeding under the act, a copy of the order dated 31.01.1977 passed by the then prescribed authority, a copy of the order dated 27.04.1977 passed in appeal by the District Judge, Bahraich, were filed and oral evidence was also tendered and the tenure holder examined himself, Govind Prasad s/o Raj Bahadur, Lal Madho Singh s/o Gaya Singh, Smt. Shubha Singh wife of Dinesh Pratap Singh. 12. The prescribed authority after considering the pleadings and evidence tendered by the parties and affording opportunity of hearing, declared an area of 7.179 acres as surplus land and accordingly, plot No.941 M of khata No.731 area 7.179 acres was declared as surplus in terms of irrigated land vide judgment and order dated 23.12.1988. 13. 12. The prescribed authority after considering the pleadings and evidence tendered by the parties and affording opportunity of hearing, declared an area of 7.179 acres as surplus land and accordingly, plot No.941 M of khata No.731 area 7.179 acres was declared as surplus in terms of irrigated land vide judgment and order dated 23.12.1988. 13. Against judgment and order dated 23.12.1988 passed by the prescribed authority, the tenure holder preferred an appeal before the Additional Commissioner (Judicial), Faizabad which was allowed and remanded the question of irrigated / unirrigated nature of land in question and the prescribed authority was directed to decide the same afresh on merits in accordance with the provisions of Section 4-A of the act directing the parties to appear before the prescribed authority on 13.05.1998 vide judgment and order dated 05.02.1998. 14. On 13.05.1998 the case came up for hearing before the prescribed authority but as no one appeared on behalf of tenure holder and only DGC (R) was present, the case was decided ex- parte against tenure holder and the earlier judgment and order dated 23.12.1988 passed by the prescribed authority was confirmed vide judgment and order dated 18.05.1998. 15. Subsequently, respondent Nos.3 to 6, who were substituted being sons as legal heirs and representative of the tenure holder, who died during the proceedings in appeal against the order dated 23.12.1988, had moved an application under Order 9 Rule 13 read with Section 151 CPC for setting aside ex-parte order dated 18.05.1998 and decision after affording opportunity of hearing, however, the said application was dismissed by the prescribed authority vide judgment and order dated 24.10.1998. 16. Against aforesaid ex-parte order dated 18.05.1998 and 24.10.1998, respondent Nos.3 to 6 preferred an appeal before the respondent No.1, who after hearing the parties allowed the same and remanded the matter again to decide the same on merits vide judgment and order dated 31.12.1998. 17. After remand of the case, respondent Nos.3 to 6 moved an application dated 31.03.1999 on the date of judgment by the prescribed authority, who ordered to keep the same on file on 31.03.1999. 17. After remand of the case, respondent Nos.3 to 6 moved an application dated 31.03.1999 on the date of judgment by the prescribed authority, who ordered to keep the same on file on 31.03.1999. The prescribed authority after affording necessary opportunity of hearing to the parties and considering the oral and documentary evidence on record, held that the land in question as irrigated and dismissed the objections of the tenure holder and declared an ear of 7.179 acres of land of plot no.741 M as surplus vide judgment and order dated 31.03.1999. 18. Against judgment and order dated 31.03.1999, respondent Nos.3 to 6 preferred an appeal before the Additional Commissioner, Devi Patan, Gonda and respondent No.1 vide judgment and order dated 30.03.2000 allowed the same holding the entire land in dispute as unirrigated. 19. After passing of impugned judgment and order dated 30.03.2000, a certified copy thereof was obtained and thereafter the opinion of DGC (Civil) was sought by the A.D.M. on 25.04.2000 and thereafter, the DGC (Civil) furnished the opinion on 24.06.2000, which was endorsed by the A.D.M. on 02.07.2000 to the District Magistrate for necessary sanction for filing an appeal and the District Magistrate directed him to take necessary action on 05.07.2000. 20. Thereafter, the case was referred to the Government of U.P. who vide order No.U.O.No.0219/Saat-Nyaya Anubhag-5-2000- Rajaswa-12 Anubhag dated 19.10.2000 granted sanction to prefer the instant writ petition. Hence, the present writ petition has been filed before this Court. 21. Submission of learned Additional Chief Standing Counsel for the petitioner - State is that the appellate Court has not taken care of impact of the judgment of the District Judge and ignored Section 29 of Ceiling Act, 1960 in passing the judgment and order. 22. His next submission is that the appellate Court has committed manifest error of law in relying upon the judgment of the District Judge dated 27.04.1977. 23. He further submitted that the appellate Court has also not taken care of statement of fact made by the Lekhpal of the concerned village. 24. He submitted that while taking into consideration the appellate Court has failed to appreciate that under Section 29, re- determination can be made by issuing notice under Section 10(2) of the Ceiling Act. 25. 23. He further submitted that the appellate Court has also not taken care of statement of fact made by the Lekhpal of the concerned village. 24. He submitted that while taking into consideration the appellate Court has failed to appreciate that under Section 29, re- determination can be made by issuing notice under Section 10(2) of the Ceiling Act. 25. His last submission is that the question of land, whether it is irrigated or un-irrigated was left open to the prescribed authority and rest of the issues have been set at rest. 26. On the other hand, learned counsel for the respondents submitted that the impugned order does not suffer from any infirmity or illegality and the petitioner itself relying on the documents annexed at page 77 of the paper book has come that on the basis of letter issued in year 2001 it came in the knowledge that the land became irrigated on construction of canal in the year 1984 fasli year 1392. 27. His next submission is that remaining of the matter by the appellate court is just and valid as the only question was remanded that whether the land is irrigated or un-irrigated , therefore, the appellate Court has committed no mistake in passing the judgment and order, which is impugned in the writ petition. 28. I have considered the submissions advanced by learned counsel for the parties and perused the material on record. 29. In regard to submission advanced by learned Additional CSC that appellate court has not taken care of impact of the judgment of the District Judge has ignored Section 29 of Ceiling Act, 1960, in fact against the judgment and order dated 31.01.1977 the tenure holder preferred an appeal before the District Judge, Bahraich, which was allowed on 27.04.1977 and declared only an area of 1.016 acres of land as surplus treating the disputed land as unirrigated land. The appellate authority while considering the material of irrigated or un-irrigated land came to the conclusion that the land, which has been declared surplus by the prescribed authority is un-irrigated land and while dealing with the matter, Section 29 of Ceiling Act, 1960 was taken into consideration, therefore, respondent No.1 has not committed any error in law in declaring the land to be un- irrigated land. The appellate Court has not committed any error in relying the judgment of the District Judge dated 27.04.1977. The appellate Court has not committed any error in relying the judgment of the District Judge dated 27.04.1977. The statement of Lekhpal of concerned village was also taken into consideration while examining the material in regard to un-irrigated land. 30. The appellate court has taken care of the statement of Lekhpal and appreciated the provisions contained under Section 29 of Ceiling Act, which is in regard to re-determination of land to be irrigated or un-irrigated by issuing notice under Section 10(2) of Ceiling Act. The appellate authority - respondent No.1 has remanded the matter back to the prescribed authority to consider the issue of irrigated or un-irrigated land on the basis of material produced by respondent Nos.3 to 6. The appellate court has not committed any error in law in remanding the matter back to the prescribed authority by holding that the question of irrigated and un-irrigated land was not properly considered by teh prescribed authority. The appellate court has not committed any mistake or error in law in remanding the matter back to the prescribed authority. 31. In view of reasons recorded above, this Court declines to interfere in exercise of discretionary power under Article 226 of Constitution of India. 32. The writ petition fails and is hereby dismissed.