(1.) This is a writ petition under Article 226 of the Constitution and the prayer is that the order of the IIIrd Additional District Judge, Kanpur, rejecting the substitution application of the Petitioners be quashed.
(2.) Proceedings under the provisions of the U.P. Imposition of Ceiling on Land Holdings Act, 1960 (briefly the Act) were taken against Rameshwar Dayal, father of the present Petitioners. The Prescribed Authority held that certain area of land was surplus land in the hands of Rameshwar Dayal Rameshwar Dayal appealed to the District Judge but without success. He filed a writ petition No. 4002 of 1976 in this Court and that petition was allowed by order dated 4 -10 -78 and the case was remanded and the appellate Court was directed to rehear and decide the appeal on merits afresh. Thus, the Ceiling Appeal No. 189 of 1976 Rameshwar Dayal v/s. State of Uttar Pradesh was restored to its original number and came up before the IIIrd Additional District Judge, Kanpur for hearing and decision. Rameshwar Dayal died on 9 -1 -80. His sons, namely, the present Petitioners, moved an application for substitution of the legal representatives on 25 -10 -80 and also appended an application for condonation of delay under Sec. 5 of the Limitation Act. The Additional District Judge took the view that the legal representatives had no good reason to move a belated substitution application. He, therefore, declined to set aside the abatement of the appeal. This order is sought to be quashed in the present proceedings.
(3.) The contention of the learned Counsel for the Petitioners is that no period of limitation for making a substitution application in an appeal under the provisions of the Act is prescribed under the Act or in Rule 3 of Order XXII of the Code of Civil Procedure which was applicable in view of the provisions of Sec. 38 of the Act, hence the appeal could not be taken as abated on the expiry of ninety days from the date of the death of Rameshwar Dayal. The application for substitution made on 25 -10 -80 ought to have been taken as not barred by limitation and should have been allowed and the abatement of the appeal should have been set aside. The order to the contrary passed by the Additional District Judge, is, thus, manifestly illegal and deserves to be quashed.