SUKHBIR Vs. PRESCRIBED AUTHORITY

JUDGEMENT

(1.) IN proceedings under the U. P. Imposition of Ceiling on Land Holdings Act the Prescribed Authority by an order dated 29.3.1975 declared certain area to be surplus with the petitioner. IN appeal two questions were raised; (1) that Smt. Om Biri was the minor unmarried daughter of the tenure-holder and should be treated as a member of his family for the purposes of determining the ceiling area, and (2) that plots no. 830 and 832 should have been classified as grove. The learned Judge by his order dated 10.10.1975 accepted the tenure holder's contention that Om Biri was a minor unmarried daughter on the relevant date and she shall be treated as a member of the tenure holder's family for the purposes of determining the ceiling area applicable to him. On the other question raised the learned Judge remanded the case to the Prescribed Authority for fresh finding. There after the Prescribed Authority on 26.2.1976 passed an order abating the case and directed that fresh proceedings be started. This order of the Prescribed Authority has been challenged by the tenure-holder. Learned counsel for the petitioner contended that the order abating the earlier case could not be legally justified. It was urged that sub-section (2) of section 31 of U. P. Act No. 20 of 1976 was not attracted to the case and consequently the earlier proceedings could not be abated. That sub-section provides : "Where an order determining the surplus land in relation to a tenure-holder has been made under the principal Act before January 17, 1975 end the Prescribed Authority is required to redetermine the surplus land under section 9 of the Uttar Pradesh Imposition of Ceiling on Land Holding (Amendment) Act, 1974, then notwithstanding anything contained in sub-section (2) of section 19 the Uttar Pradesh Imposition of Celling on Land Holdings (Amendment) Act, 1972 every appeal under section 13 of the Principal Act or other proceedings in relation to such appeal, preferred against the said order, and pending immediately before the tenth day of October, 1975, shall be deemed to have abated on the said date." IN this case the order of the Prescribed Authority determining the ceiling area was made after January 1975. Consequently this provision which provides for abatement of the proceeding is not applicable. Sub-section (3) of section 31 of the aforesaid Act lays down that where an order determining surplus land in relation to a tenure holder has been made under the principal Act before the tenth day of October, 1975, the Prescribed Authority may, at any time within a period of two years from the said date, redetermine the surplus land in accordance with the principal Act as amended by this Act. This power can be exercised notwithstanding the fact that an appeal against the order of the Prescribed Authority was filed and whether it was pending or decided. This provision does not provide for abatement of the earlier proceeding. It only empowers the Prescribed Authority in certain circumstances to re-determine the surplus land in accordance with the principal Act as amended by U. P. Act no. 20 of 1976 provided the earlier determination was made before the tenth day of October 1975. IN the present case, as noticed earlier, the earlier determination was in fact made before the tenth day of October, 1975. It was, therefore, competent for the Prescribed Authority to re-determine the surplus area in accordance with the amended provision of the Act. For that purpose the decision of the appeal against the earlier order of the Prescribed Authority is no bar. Obviously the Prescribed Authority was not justified in passing an order of abatement of the earlier proceeding although it was open to him to proceed to re-determine the surplus area. We accordingly allow the petition in part and quash the order of the Prescribed Authority abating the earlier proceeding. The other part of the order for proceeding afresh for re-determination of the surplus area shall stand. Parties shall bear their own costs.