DADHICH SINGH Vs. STATE OF U P

JUDGEMENT

(1.) IN a proceeding under the U.P. Imposition of Ceiling on Land Holdings Act, 1960 (hereinafter referred to as the Act) some land of Petitioner's father Mohar Singh was declared to be surplus by an order of the Prescribed Authority dated 26th May, 1962. It was further directed that since Khata No. 369, plots of which had been declared as surplus, was joint one, proceedings to demarcate the area be started. The lands of other co -tenure holders Smt. Shanti Bai and Smt. Vidya Bai were also declared surplus by two separate orders of the Prescribed Authority dated 11 -6 -1962. The aforesaid orders of the Prescribed Authority were modified by the order of the Prescribed Authority dated 10 -4 -1964. It was held that in Khata No. 114 the share of Mohar Singh was one half, share of Smt. Shanti Bai was one fourth and that of Smt. Vidya Bai was one fourth. Moha Singh died and thereafter an application on behalf of the Petitioner was filed before the Prescribed Authority in the case of Smt. Shanti Bai and Smt. Vidya Bai to the effect that Khata No. 114 exclusively belonged to him and Smt. Shanti Bai and Smt. Vidya Bai had no shares in it. Smt. Shanti Bai and Smt. Vidya Bai filed objections against the aforesaid application of the Petitioner. The Prescribed Authority by his order dated 28 -1 -1966 dismissed the Petitioner's application. The Petitioner preferred an appeal against the order of the Prescribed Authority which was allowed by the appellate court and it was held that the Petitioner was the sole tenure -holder of Khata No. 114 and Smt. Shanti Bai and Smt. Vidya Bai had no shares in it. In pursuance of the order of the appellate court the Prescribed Authority by his order dated 11 -12 -1971 declared 36.02 acres of land as surplus out of Khata No. 114. The Petitioner preferred an appeal and the appellate court by its order dated 28 -11 -1974, abated the appeal along with the proceedings under Section 19(1) of Act No. 18 of 1973. Thereafter a fresh notice was issued to the Petitioner. In response to the notice the Petitioner filed an objection to the effect that the land in dispute was ancestral in which along with Mohar Singh, the Petitioner and his son Jagroop were also co -tenure -holders and no land of the Petitioner was liable to be declared as surplus. The Prescribed Authority rejected the objection and declared 52.75 acres of land as surplus. The Petitioner preferred an appeal and the appellate court by his order dated 26 -5 -1977 allowed the appeal and modified the order of the Prescribed Authority declaring 1.60 acres of land as surplus. The grievance of the Petitioner is that on the basis of the previous order passed by the Prescribed Authority, the Respondents are threatening to take possession and settle the surplus land with others. The Petitioner has challenged the action of the Respondents and has prayed for the issue of a writ of prohibition to restrain the Respondents Nos. 2 and 3 from taking possession or leasing out any part of the original holding of the Petitioner.

(2.) THE stand taken by the State is that in pursuance of the order of the Prescribed Authority declaring surplus land of the Petitioner's father Mohar Singh, surplus land was notified in the official gazette in accordance with Section 14(1) of the Act and thereafter the State took possession on 14 -10 -1971. Therefore, the order passed by the Additional District Judge, on 8 -11 -1974, abating the appeal along with the proceedings under Section 19(1) of the Act No. 18 of 1973 was without jurisdiction. His contention is that the order of the appellate court was passed in a miscellaneous appeal as the surplus land was declared by the Prescribed Authority long ago and no appeal was filed against the order of the Prescribed Authority declaring the land of the Petitioner as surplus. Therefore, the State has every right to settle the land already declared surplus.

(3.) WE have considered the arguments of the Learned Counsel for the parties. Declaration of surplus land under the provisions of the Act contemplates three things, firstly, determination of the ceiling area applicable to the Petitioner, secondly, the surplus land held by the Petitioner over and above the ceiling limit and thirdly, the demarcation of the surplus land as contemplated under the Act. After declaring the surplus land of the Petitioner's father Mohar Singh the proceedings in one form or the other were going for the demarcation of the surplus area and ultimately by the appellate order dated 8 -11 -1974, the appeal along with the proceedings abated. The effect of the abatement order was that all the previous proceedings were washed as and the orders passed by the Prescribed Authority became non -extent. Consequently, fresh notices were issued and the case of the Petitioner was decided afresh. The appellate court this time accepted the claim of the Petitioner that along with Mohar Singh, the Petitioner and his son Jagroop were also co -tenure -holders as the land in dispute was ancestral. According to the order of the appellate court only 1.60 acres of land was declared surplus. The gazette notification dated 4 -7 -1964 declaring surplus land of the Petitioner and dakhalnama dated 14 -10 -1971 based on the previous order of the Prescribed Authority became ineffective and unenforceable. In this situation the Respondents Nos. 2 and 3 have no legal basis to act upon the previous orders of the Prescribed Authority and dispossess the Petitioner and lease out his land previously declared as surplus.