MURLIDHAR KASERA Vs. STATE OF U P

JUDGEMENT

(1.) B. Diksnit, J. This writ petition is directed against an order passed by State Government on 5-9-87 in exercise of power under Section 34 of the Urban Land (Ceil ing and Regulation) Act, 1976 (in short 'act' ).

(2.) THE petitioners were served with a draft statement under Section 8 (3) of the Act against which they filed objection claim ing that they were not possessed of any land beyond ceiling limit. THE Competent Authority after considering the objection by order dated 13-9-87 held that petitioners did not possess land beyond ceiling limit. No appeal was preferred by State against the order passed by Competent Authority. After a lapse, of about 8 years the State Government issued a notice on 30-10-86 to petitioners under Section 34 of the Act. THE petitioners filed an objection against it an then State Government by order dated 5-9-87 set-aside the order of Competent Authority so far petitioner No. 1, Murlidhar Kasera is concerned and declared 420. 235 sq. meter of land possessed by N'm to be beyond his ceiling limit and directed taking over of possession of the same. Aggrieved by the said order of State Government the petitioners have preferred this writ petition.

(3.) THE other argument of learned Counsel for petitioner that the State Gcvernment has re-appreciated evidence and recorded its own finding in excess of its power has also much force. THE argument that power of State Government under Sec tion 34 did not extend to re-appreciating the evidence and interfering in finding of fact recorded by Competent Authority, which has been done in this case, has much force. Section 34 of the Act permits State Govern ment to satisfy itself as to the legality or propriety of an order of Competent Authority or to the regularity of procedure before him. THE power to re-appreciate evidence is not covered under it and, there fore, the State Government exceeded its power in holding that the two brothers namely, Murlidhar Kasera and Bhagwan Das Kasera, separated by interfering in find ing of fact that they were joint. THE State Government while exercising power under Section 34 of the Act could not have inter fered in finding of fact and substituted its own finding that the property in question is separately acquired property and not of jojni i-finu Family and to have held shares of pauiuner differently from that held by Competent Authority. THE order of State Government is unsustainable on this ground also.