B.L.Yadav - (1.) BY means of the present petition under Article 226 of the Constitution, the impugned order dated 31-10-1981 (Annexure-1 to the writ petition) passed in the proceedings under section 9 of U.P. Imposition of Ceiling on Land Holdings Act, 1960 (herein-after referred to as the Act), and also the order dated 25-11-1990 passed by the Additional Commissioner, Gorakhpur Division, Gorakhpur dismissing the appeal of the petitioners under Section 13 of the Act, are sought to be quashed by issuing a writ of certiorari.
(2.) LEARNED counsel for the petitioner urged that the order determining the surplus area was passed by the prescribed Authority under Section 11 (1) of the Act against Smt. Umapati Devi after serving a notice on her under section 10 (2) of the Act who died without filing any appeal. Before her death, the petitioners obtained a will from her and filed an appeal under section 13 (1) alongwith an application under section 5 of the Limitation Act for condonation of delay, but the delay has not been condoned and the application has been rejected on insufficient ground with the observation that no grounds exist for condonation of delay. The learned counsel urged that as the petitioners were not served with any notice as required by Section 10 (2) of the Act, the delay in preferring the appeal may be condoned and the same may be decided on merits. In view of Rule 26 of the Rules framed under the Act, in case a tenure holder dies, his heirs are required to be served by the prescribed Authority, but that was not done either by the Prescribed Authority of by the Appellate Court. The impugned order is manifestly erroneous. A perusal of the record indicates that the order of the prescribed Authority dated 31-10-1981 was passed when Smt. Umapati Devi the tenure holder, was alive. Thereafter for four years till 1985 she was alive, but she did not prefer an appeal against that order. The appeal was filed in fact after five years from the date of her death. In this way, a delay of nine years was caused in preferring the appeal. When for four years Smt. Umapati Devi against whom the order was passed, did not prefer any appeal, there was no justification for the petitioners to explain the delay caused during the lifetime of Smt. Umapati Devi. That delay of four years cannot be explained. This aspect of the matter has been considered in paragraph 2 of the judgment of the Appellate Court (Annexure-5 to the writ petition) at page 28 of the paper book. Consequently, the Appellate Court was perfectly justified in rejecting the application as barred by inordinate delay.
(3.) COMING to the next question as to whether provisions of Rule 26 of the Rules will apply, particularly to the facts of the present case, when actually for four years Smt. Umapati Devi was alive and did not prefer any appeal and whether under Rule 26 notice could be given to the petitioners after the death of tenure holder The statutory provisions of Rule 26 are as follows :- "If during the course of service of notice under Rule 24 or otherwise, the Prescribed Authority comes to know that the person on whom the notice is or was to be served has died, may proceed to determine the legal representative of the deceased in the manner prescribed in Rule 43-B of the U. P. Zarnindari Abolition and Land Reforms Rules, 1952." ;