V.K. Shukla, J. - (1.) PETITIONER has approached this Court questioning the validity of order dated 18.02.1986 passed by the Prescribed Authority in proceedings under U.P. Imposition of Ceiling on Land Holdings Act, 1960 and the order of its affirmance in appeal vide order dated 26.09.1988 passed by Additional Commissioner, Jhansi Division, Jhansi.
(2.) BRIEF background of the case is that Petitioner was served with a notice on 18.06.1984 under Section 10 (2) of the U.P. Imposition of Ceiling on Land Holdings Act, 1960. Said notice proposed an area of 67.45 acres of irrigated land to be declared as surplus. Petitioner filed objection on 25.09.1984 before the Prescribed Authority, inter alia, on the ground that he had inherited the land which was ancestral and sir khudkast and his four sons, Shiv Mohan, Amar Singh, Balbir Singh and Braj Mohan Singh were born before abolition of Zamindari, as such his four sons and the Petitioner himself, were having 1/5th share each, and each one of them was tenure holder in his own independent right, as such notice ought to have been given to each one, as each one of them had been in possession of respective share and cultivating the land. Further plea was taken that entire land was un -irrigated in the relevant year and there was no land to be declared surplus. Petitioner claims to have examined himself before the Prescribed Authority. Apart from it, Jagroop Singh, Ramdhani and Lotan Singh also appeared before the Prescribed Authority and all of them supported the case of the Petitioner that the Petitioner was having ancestral sir khudkast holding and all his four sons were born before abolition of zamindari and each one of them was having 1/5th share. Petitioner also filed certified copy of the extract of family register, which was issued under Section 109 of the U.P. Panchayat Raj Act, 1947. Petitioner also filed extract of khatauni of 1378 -79 Fasli, Jot Akar Patra and CH Forms 41 and 45 to show and substantiate that the land in question was un -irrigated land with single crop. Petitioner has stated that in the said proceedings statement of Shiv Bhajan Lekhpal was recorded. In respect of three sons of Petitioner, he had stated that they were born before abolition of zamindari and in regard to youngest son, he expressed his ignorance. The record keeper of the Revenue Record Room was also examined. Petitioner has stated that Braj Mohan and Supervisor Kanungo were also examined. The Prescribed authority dismissed the objection by order dated 18.02.1986. Appeal preferred by the Petitioner against the said order had also been dismissed on 04.01.1988. Aggrieved Petitioner instituted writ petition No. 3312 of 1988 before this Court. Said writ petition was allowed by this Court on 04.08.1988 and the matter was remanded back with following observations: To my mind it was incumbent upon the appellate authority to have recorded a categorical finding whether the sons of the tenure holder were born on the date immediately preceding the date of vesting contemplated by the provisions of U.P. Zamindari and land Reforms Act. A perusal of the impugned judgment indicates that the appellate authority has not approached the problem from correct angle and has patently erred in not answering the contentions raised on behalf of the Petitioner in this regard. As regards question of irrigated land and unirrigated land, it was incumbent upon the appellate authority to have considered the claim of the Petitioner strictly in the light of the provisions of Section 4 -A of the U.P. Imposition of Ceiling on Land Holdings Act (Act No. 1 of 1961). Since the appellate authority has failed to consider the question of irrigated and unirrigated land held by the Petitioner specifically in accordance with the provisions of law laid down in Section 4 -A of the aforesaid Act, I think that the impugned judgment suffers from patent error of law and deserves to be quashed. For the foregoing discussion, this writ petition succeeds and is allowed and the judgment of the appellate authority dated 4.1.1988 is hereby quashed and the appellate authority I s directed to re -examine the claim of the Petitioner strictly in accordance with law as well as in the light of the observations made above. Parties are directed to bear their costs. After the aforesaid order had been passed, the appellate authority reconsidered the matter and again dismissed the appeal on 26.09.1988. At this juncture, present writ petition was filed.
(3.) PLEADINGS interse parties have been exchanged, and thereafter, present writ petition has been taken up for final hearing and disposal with the consent of the parties.;