R. R. Rastogi, J. - (1.) :-
(2.) THIS petition under Article 226 of the Constitution arises out Of proceedings under the U. P. Imposition of Ceiling on Land Holdings Act. The petitioners were served with a notice under Section 10 (2) of the Act. They contested the notice on various grounds. The Prescribed Authority, vide its order dated 8-10-1976, determined 49 bighas 14 biswas land as surplus. The petitioners filed an appeal which was allowed on 8-7-1977 and the case was remanded to the Prescribed Authority. After remand the Prescribed Authority again, vide its order dated 26-8-1978, determined the same area as surplus. The petitioners filed an appeal which was allowed and again the case was remanded. Thereafter, the Prescribed Authority, vide its order dated 6-1-1979, accepted the petitioners' contentions and held that they had no surplus land and the notice was discharged. A copy of this order is Annexure 2 to the writ petition. That order became final. Some time between 8th of October, 1976 and 8th of July, 1977 possession over the aforesaid surplus land was taken by the State and the land was allotted in favour of respondents 6 to 30. After the discharge of notice the petitioners made an application under Section 144 CPC for restitution of possession on 15-9-1979. The Prescribed Authority rejected that application, vide its order dated 15-10-1979, mainly on the view that application for cancellation of the lease deeds could be moved only before the Commissioner. A copy of this order Is Annexure 4 to the writ petition. Being aggrieved the petitioners filed an appeal against that order which as well was dismissed on 2-2-1980. The learned Additional District Judge as well has taken the same view that the application for restitution could be given only before the Commissioner under Section 37 of the Act. A copy of this order is Annexure 5 to the writ petition. By means of the instant petition the petitioners seek the quashing of the aforesaid orders of the Prescribed Authority and the appellate court. Two submissions were made before me on behalf of the petitioners firstly that under section 37 of the Act the Prescribed Authority alone has power to direct restitution under section 144 CPC and that the Prescribed Authority erroneously failed to exercise jurisdiction vested in it and secondly that if under section 37 the Prescribed Authority has no such power, then it has inherent jurisdiction to restore the parties to the position which existed prior to the order dated 8th of October, 1976, by which surplus land was declared and in pursuance of which possession was taken over the surplus land. It was also contended that the petitioners did make an application under section 37 of the Act before the Commissioner for restitution of possession. But, it was dismissed on 29-11-80 on the view that such an application could not be given under section 27(4) because the disputed land no longer remained a surplus area and it was the Prescribed Authority alone who could direct restitution under sections 144/151 CPC. A copy of this order has been annexed to the supplementary affidavit.
(3.) ON the other hand it was urged on behalf of the allottees that when during the pendency of the appeal possession of surplus land was taken and when settlement was being made under section 27 of the Act, the petitioners should have approached this Court for a writ of mandamus directing the State of U. P. not to proceed with the settlement and that since the settlement of surplus land with the allottees was an act of State, it could not be treated as illegal. It was next contended that there is no question of the Prescribed Authority allowing restitution of possession in exercise of inherent power because section 37 of the Act extends the provisions of the Civil Procedure Code only to proceedings in which the Prescribed Authority is holding an inquiry or hearing an objection. Lastly according to the learned counsel after the rejection of the application given under section 27(4) of the Act by the Commissioner, the petitioners should amend their petition and implead the Commissioner as a party and sought a relief for cancellation of the Pattas because in case they do not do so, legal difficulties would arise. I have carefully considered the respective submissions and in my opinion the petitioners' case has considerable merit. Chapter IV of the Act provides for disposal and settlement of surplus land and contains sections 24 to 31. Section 24 has been omitted by U. P. Act No. 18 of 1973. Section 25 empowers the State Government to permit the use of surplus land for other public purposes. Under section 26 the Collector is empowered to settle the surplus land vested in the State on behalf of the State Government in accordance with the provisions of sections 26A and 27. Section 26A provides for settlement of land which had been let out for an interim period under section 26(2) as it stood before the commencement of Uttar Pradesh Land Laws (Amendment) Act, 1969. Under section 27 the State Government has been empowered to settle the surplus land. Under sub-section (4) of this section the Commissioner may of his own motion and shall, on the application of any aggrieved person, enquire into such settlement and if he is satisfied that the settlement is irregular he may after notice to the person in whose favour such settlement is made to show cause, cancel the settlement and the lease, if any and direct the person holding or retaining possession to be evicted. The order passed by the Commissioner under subsection (4) has been made final under sub-section (5). Section 28 provides for terms and conditions of settlement and sections 29, 30 and 31 provide for subsequent declaration of further land as surplus land, that is, where some accretion has taken place in the holding of the tenure holder under a decree or order of any Court, or as a result of succession or transfer, or by prescription in consequence of adverse possession, or when an unirrigated land becomes irrigated or by recession of any river.;