ANAND CHANDRA TEWARI Vs. STATE OF U.P.

JUDGEMENT

(1.) HEARD Sri R.P. Singh, learned counsel for petitioners and Sri Vinay Bhushan, learned Additional C.S.C. for respondents. This writ petition arises out of proceedings for determination of surplus land under U.P. Imposition of Ceiling on Land Holdings Act. Prescribed Authority (Ceiling)/ Additional S.D.O., Nanpara, District Baharaich decided Case No.395, State of U.P. Vs. Raghuraj Pratap Tiwari on 18.07.1984 declaring 17.41 acres irrigated land as surplus land with Raghuraj Pratap Tiwari, petitioner No.3 (petitioners No.1 & 2 are his sons). Against the said order, State of U.P. filed Appeal No.49/486/71. Appeal was allowed on 19.03.1990 by Additional Commissioner, Faizabad Division, Faizabad and matter was remanded to the Prescribed Authority. The said order of the appellate court has been challenged through this writ petition.

(2.) EARLIER also the matter had been litigated uptil High Court in the form of Writ Petition No.2403 of 1979, Raghuraj Pratap Tiwari Vs. District Judge. The said writ petition was decided on 19.02.1980. Copy of the said judgment was placed on record on the date of argument. In the said judgment, it is mentioned that petitioner Raghuraj Pratap Tiwari had raised two points. One was that the land was un -irrigated and the other was that he only had 1/8th share in the land and remaining 7/8th share was held by his sons (i.e. petitioners No.1 and 2 of the instant writ petition). Earlier Prescribed Authority had declared 43.647 acre as surplus land, which was reduced in appeal by 11.41 acres and it was held that the tenure holder was having 32.5 surplus land. The writ petition filed against the same (2403 of 1979) was allowed on 19.02.1980 categorically holding that the entire land belonged to Raghuraj Pratap Tiwari. The matter was remanded to the appellate authority/ District Judge only to reconsider the question of irrigated or unirrigated nature of the land. It was observed in the said judgment that if khasras of 1378 Fasli and 1379 Fasli were not available then the question of nature of land being irrigated or unirrigated should have been decided on the basis of other evidence on record. Pursuant to the said remand order, II A.D.J. Baharaich again heard Rent (Revenue) Appeal No.306 of 1976 and remanded the matter back to the Prescribed Authority to consider as to whether certain plots were irrigated or unirrigated through judgment dated 20.07.1981, copy of which was also placed on record on the date on which arguments were heard in this writ petition. Thereafter, matter was decided by the Prescribed Authority through Annexure -1 dated 18.07.1984. The Prescribed Authority committed an error of law in holding that part of the land belonged to the sons of Raghuraj Pratap Tiwari while this point had already been finalised by the High Court. The argument that sons of Raghuraj Pratap Tiwari could raise it, was wrongly accepted by the Prescribed Authority. Accordingly, there is no error in the impugned order passed by the lower appellate court in setting aside the judgment of the Prescribed Authority and remanding the matter to it. The argument that subsequently consolidation authorities had declared rights of the sons is wholly untenable. This point had been raised in the earlier writ petition and decided against the father. In order to avoid the effect of the said judgment over the property from ceiling, father and sons got the rights of the sons declared in consolidation. Moreover by virtue of Section 5(6) particularly its Explanation -I of the Act, no finding given by any court, tribunal or authority is binding upon ceiling authorities. In any case if the judgment of the High Court and earlier judgment of lower appellate court had been filed before consolidation authorities, they would not have passed contrary order. Accordingly, order of consolidation courts being utterly without jurisdiction and having been obtained on compromise in order to nullify the earlier judgment of the High Court has got absolutely no effect.