KAUSHAL KISHORE Vs. CIVIL JUDGE JHANSI

JUDGEMENT

(1.) THIS petition arises out of the proceedings under the U.P. Imposition of Ceiling on Land Holdings Act.

(2.) THE facts, in brief, are these : THE usual notice under S.10(2) of the Act was issued to one Shri Bhaiyya Lal and he filed objections through his Mukhtar-e-am Sri Narvada Prasad. THE objections were dealt with and disposed of by the Prescribed Authority. THE said tenure -holder died on 19th July, 1976 and his heirs and legal representative filed the appeal before the appellate court below. THE appeal was partly allowed. THE petitioners have come up in the instant petition and the learned counsel for the petitioners has raised three contentions before me. His first contention is that the appellate court below has due to an inadvertence failed to notice the contention which was raised before the said court in respect of the effect of consolidation proceedings on the ceiling proceedings. Counsel has drawn my attention to the affidavit of the petitioner No. 2 himself who is an advocate and who has stated in the affidavit that he argued the appeal before the appellate court below and that he definitely raised the point about the effect of the decision in the consolidation proceedings and he also stated that he brought to the notice of the appellate court below the ruling reported in 1977 All WC 318 : (AIR 1977 Noc 354) (Jhandoo v. State). Learned counsel has also drawn my attention to the fact that Issue No. 18 was framed in respect of the said controversy before the Prescribed Authority and in the grounds of appeal to the appellate court below, there is ground No. 11 where the Prescribed Authority's order was attacked on the aforesaid ground relating to the effect of the decision of the consolidation authorities on the ceiling proceedings. Taking all these aspects of the matter, I am satisfied that due to some inadvertence the appellate court below did not advert to the said question and I think that in view of the law laid down in the aforesaid case, the petitioner is entitled to claim that so far as plot No. 1130, area 1.51 acres is concerned (as stated in the supplementary affidavit of the petitioner No. 2 himself), the same should be excluded from the total holding of the deceased tenure-holder. THE said plot is stated in the said affidavit to have gone to the chak of Sri Halkoo by the order of the Assistant Consolidation Officer dated 4-12-1974.

(3.) THIS writ petition accordingly succeeds in part. The aforesaid plot 1130 should be excluded from the total holding of the deceased tenure-holder Bhaiyya Lal and the surplus should be calculated after excluding the said plot from the total holding of the said deceased tenure-holder. The order of the Prescribed Authority has merged in the order of the judgement of the appellate court below, therefore, I direct that the judgement of the appellate court below shall stand quashed to the extent as aforesaid, namely, plot No. 1130 which travelled out of the hand of the petitioner as a result of the consolidation proceedings, shall be excluded from the total holding of the deceased tenure-holder and the necessary correction shall be made on the basis of the said direction. In the circumstances of the case I make no order as to costs. Petition partly allowed.