SURESH CHANDRA TEWARI Vs. STATE OF U.P.

JUDGEMENT

(1.) The present writ petition has been filed, seeking quashing of the order dtd. 18/10/1994 passed by Additional Commissioner (Judicial), Lucknow Division, Lucknow whereby learned Additional Commissioner has allowed the appeal filed by the State against the order dtd. 23/9/1985 passed by the prescribed authority under the provisions of U.P. Imposition of Ceiling on Land Holdings Act, 1960 (hereinafter referred to as 'the Act, 1960').

(2.) Notice under Sec. 10(2) of the Act, 1960 was issued on 16/3/1974 against the father of the petitioners, Hari Shankar Tiwari since dead who was impleaded as respondent No. 3 in this writ petition by the Prescribed Authority. Father of the petitioners filed his objection to the said notice on 20/4/1974. In the said objection, Late Hari Shankar, father of the petitioners said that a family settlement was arrived at between the parties in the year 1967 and, according to the said family settlement, shares of all the family members were determined. This settlement was reduced in writing in the year 1969 and in the year 1970, petitioner No. 1, one of the sons of Late Hari Shankar, instituted a suit in the Court of Munsif in respect of non agricultural properties which were also included in the said memorandum of family settlement. Said suit was decreed on 2/11/1970 on the basis of family settlement and memorandum dtd. 9/11/1969. On 29/1/1971, a suit for permanent injunction for restraining Late Hari Shankar Tiwari, father of the petitioners was instituted by petitioner No. 1 in respect of agricultural land and on the basis of said family settlement, suit was decreed on 9/8/1971. It was said that land of Village Bojhwar in Gata Nos.125, 127, 157, 166, 270, 278, 159, 168 and land of Village Bahshar of Gata No. 492, land of Village Alhar in Gata No. 1168 and land of Village Roshanpur in Gata Nos.436, half of 484, 355, 356, 357, 358 and half of 361 was his land. It was further said that land of village Birauri in Gata No. 1353 was also his land.

(3.) In CLH Form 3 annexed with the notice issued to respondent No. 3 under Sec. 10(2) of the Act, 1960 should not have included the land of the petitioner as mentioned above. Prescribed authority on 21/12/1974 adjudicated the notice dtd. 20/4/1974 and vide order dtd. 21/12/1974 declared 37 Bigha 5 Biswa 17.8 Biswansi land of respondent No. 3, father of the petitioners as surplus under the provisions of Act, 1960.