OM PAL SINGH Vs. STATE OF U P

JUDGEMENT

(1.) B. Dikshit, J. By this petition the petitioner has challenged the order dated 30-9-1986 passed by Prescribed Authority under U. P. Imposition of Ceiling on Land Holdings Act (for short 'prescribed Authority') and appellate authority order dated 23-7-1987 dismissing the appeal of petitioner. As counter- affidavit has been filed but no rejoinder affidavit has been filed, the writ petition can be finally dis posed of at the stage of admission and it is being disposed of in accordance with Rules of the Court.

(2.) BY a notice issued under Section 10 (2) of U. P. Imposition of Ceiling on Land Holdings Act (in short Act') the Prescribed Authority proposed 3 acres of land belonging to Ram Charan Singh, father of the petitioner, as surplus. The notice was contested by Ram Charan Singh. Prescribed Authority by order dated 13-1-1975 discharged the notice against which an appeal was preferred by State of U. P. A fresh notice was issued under Section 10 (2) of the Act on 21-6-1976 in the name of Ram Charan Singh after enforcement of U. P. Imposition of Ceiling on Land Holdings (Amendment) Act, 1976, proposing 2. 57 acres of irrigated land as surplus. An objection was filed by Ram Charan Singh on 23-6-1976. The Prescribed Authority by order dated 25-6-1976 rejected the objection and con firmed notice and proposed plot No. 4 of village Mubarakpur Talan having an area of 4 Bigha 2 Biswa 7 Biswansi for being declared as surplus. Ram Charan Singh preferred an appeal under Section 13 of the Act which was dismissed on 26-10-1977. A writ petition was also filed by him which was dismissed by order dated 22- 11-1978. Subsequently, when it came to taking over of possession, an application under Section 13-A of the Act was moved on behalf of State of Uttar Pradesh wherein it was claimed that in CLH Form No. 6 direction was issued for taking over of possession of plot No. 4 area 4 Bigha 2 Biswa 7 Biswansi but the said form was returned by Tehsildar-Bijonore, with the report that plot no, 4 did not belong to tenure- holder Ram Charan Singh. This application was moved by State after receipt of the report of Naib- Tehsildar (Ceiling) submitted after an enquiry at which he concluded that plot No. 4 was not of tenure- holder Ram Charan Singh. The application under Section 13-A was moved, according to contesting opposite par ties, for correction of mistake to the effect that as plot No. 4 did not belong to petitioner, therefore, some other land of petitioner be declared as surplus. As the tenure-holder was dead at the time of moving of application, an objection was taken by petitioners to the effect that if said plot is not accepted to be belonging to Ram Charan Singh and if the land is treated as not belonging to tenure- holder then that land is to be deducted from holding of petitioner for determining if petitioner held land beyond the prescribed ceiling limit and if any land was to be declared as surplus with Ram Charan Singh. The petitioners also objected to the main tainability of such an application for change of land to be declared surplus on an application under Section 13-A of the Act. The prescribed Authority by order dated 13. 9. 1986 rejected the objection of petitioners and accepting the case of State directed that surplus land be taken from plot No. 575 instead of plot No. 4. The petitioners feeling aggrieved preferred an appeal. The appeal was dismissed on 23-7-1987 and thereafter petitioners have filed this writ petition.

(3.) U. P. Imposition of Ceiling on Land Holding Act is a social welfare legisla tion enacted with the object of equitable distribution of land. To achieve said object a ceiling limit has been fixed by the Act so that none holds land beyond that Ceiling limit. To ascertain if tenure-holder is having land beyond Ceiling limit and if he has then how much is to be taken as surplus may give rise to a dispute between a tenure- holder and State, which did arise in this case. All such adjudications by ceil ing authorities are only for the purpose of ascertaining that no tenure-holder holds land beyond his ceiling limits. In such situation if at any time, in giving effect to an order determining surplus land with a tenure-holder, the Prescribed Authority finds that the land of which possession was being taken did not belong to tenure-holder but to some other person then in such a situation the power to rectify apparent error under Section 13-A of the Act can be taken recourse to. Such power gives rise to an apparent error for invoking power to rectify. Even if Section 13-A had not been there then an implied power could be inferred with ceiling authorities, who, are supposed to take over land possessed by petitioners if they hold any land beyond their ceiling limit. Such an interpretation is necessary in all fairness for doing justice to parties so that the tenure- holder is not deprived of any land held by him which is within the ceiling limit applicable to him. It goes without saying that just like courts, the ceiling authorities cannot be allowed to sacrifice doing justice to a tenure-holder merely on technicality. If they cannot get possession of a land declared by them surplus for the reason that it does not belong to tenure-holder but is included in the holding of tenure-holder then the ends of justice requires that they should be made to re-open the matter and after excluding such land from the holding of petitioner re-determine land of his holding and if it is found that the tenure-holder has some surplus land then possession of only that much land be taken. Keeping these aspects in view I am of the opinion that in this case the end of justice will be met if the Prescribed Authority is directed to re-open the determination of ceiling area of petitioners and to see that after leaving out the area of plot No. 4 if petitioners are possessed of any land beyond ceiling limit applicable to them. This can be done in exercise of power under Section 13-A of the Act as an error apparent on the face of record. As plot No. 4 was considered to be that of petitioners while determining ceiling limit and surplus land with petitioners and subsequently the case set-up by State is that said plot did not belong to petitioners, the error could be rectified as an error apparent on the face of record. Thus, for said reason the orders dated 30-9-1986 passed by Prescribed Authority (Annexure-4 to the writ petition) and that of appellate authority dated 23-7-1987 (Annexure-5 to the writ petition) are to be quashed and the case is to be sent back to the Prescribed Authority to redetermine if petitioners are possessed of any land beyond their ceiling limit after leaving out plot No. 4 from petitioners holding. In case Prescribed Authority cames to the conclusion that petitioners are possessed of land beyond ceiling limit after exclusion of plot No. 4 then it will be open for Prescribed Authority to take possession of that much of land which is surplus after considering the choice of petitioners, if any.