- (1.) THE petitioner, a lady, has been compelled to approach this Court again for the restoration of her rights and possession over new plot no. 408 (Old Plot No. 438) area 4.48 acres situate in village Padya Mustkin, Tappa Doma Khand, Pargana Tilpur, Tehsil Nichlaul, District Maharajganj in proceedings under the U.P. Imposition of Ceiling on Land Holdings Act, 1960. THE petitioner filed objections under sub-section (2) of Section 11 of the Act. Her objections have been allowed on 1.9.2008 and a further order has been passed by the prescribed authority on 30.12.2008 for restoring her status as tenure holder and restituting her possession. THE respondent State and the contesting respondent allottees of the surplus land filed four appeals that have been dismissed. However while dismissing the appeal the learned Commissioner who is the appellate authority has made observation adverse to the petitioner for restoring her possession and restituting the land. It is this part of the order of the appellate authority which is assailed in the present writ petition.
(2.) THE petitioner in short contends that she had already acquired rights over the land in question long before the appointed date i.e. 24.1.1971 under the 1960 Act, and the same was wrongly included as land surplus in the hands of one Radha Krishna Khaitan and Durga Prasad Khaitan. Radha Krishna Khaitan was subsequently survived by his heir Jagdamba Prasad Khaitan. Proceedings under the Ceiling Act took place against them and Old Plot No. 438 to the extent of the area indicated, came to be declared surplus. THE said land was treated as having vested in the State after having declared surplus under the orders dated 12.7.1994, 1.12.1994, 18.2.1995 and 18.3.1996. THE land came to be processed for allotment thereafter and was accordingly allotted to the respondents 6 to 15. In paragraph 8 of the writ petition, the petitioner has categorically stated that inspite of the fact that she was in possession and her name had been recorded over the land in dispute, she was never put to notice by the Ceiling Authorities and the entire proceedings were conducted at Kushinagar Padrauna whereas the land is situate in the district of Maharajganj. There was no intimation to the petitioner at any stage, and when the respondents proceeded to take possession for handing it over to the allottees, she filed her objections under sub Section (2) of Section 11 of 1960 Act. The Prescribed Authority by the order dated 1st September, 2008 allowed the objections of the petitioner holding that the land in dispute had been wrongly included for declaration of as surplus land in the hands of Radha Krishna Khaitan and others, and after having considered the entire evidence on record and the contest put forth by the State further passed an order on 30.12.2008 on an application filed by the petitioner to restore the status of the land in favour of the petitioner. Four appeals under Section 13 of the 1960 Act were filed, against the two orders dated 1.9.2008 and 30.12.2008. Two by the State of U.P. and two by the respondents no. 6 to 15 who are the allottees. The appeals filed by the State were held to be not maintainable as they were not filed through the competent authority. The appeals filed by the allottees were also dismissed as, once the land had been kept out of ceiling proceedings under the order of the Prescribed Authority, the same was not surplus and accordingly did not vest in the State. The State, therefore, had no right to allot the said land and accordingly their appeals were dismissed on this ground by the impugned order dated 15.12.2010.
(3.) AFTER the order passed by the Prescribed Authority on 1.9.2008 and 30.12.2008, the petitioner filed a writ petition praying that her claim has been accepted by the Prescribed Authority and that her name has also been mutated in the revenue records but actual physical possession was not being restored inspite of an order passed on 18.4.2009 by the Prescribed Authority. The writ petition was entertained and an interim mandamus was issued on 14.5.2009, in response whereto the State and the respondents no. 6 to 15 who are allottees appeared and informed the court that four appeals had been filed as referred to herinabove and pending appeal, the petition be not entertained. The said writ petition No. 25249 of 2009 was finally disposed of on 22nd July, 2009 directing the appellate authority to dispose of the appeals including the issue relating to the maintainability thereof. It is thereafter that the impugned order has been passed on 15.12.2010 dismissing the appeals. The petitioner however is aggrieved only by that part of the impugned order whereby the learned Commissioner has observed that the Prescribed Authority had no jurisdiction to pass the order of restitution/restoration in favour of the petitioner as the petitioner will have to file an appeal, and if the appellate authority passes an order, then only such a restitution can be entertained. For this the learned Commissioner has observed that the Prescribed Authority straight away does not have the power to cancel the leases of the allottees which vests in the Commissioner, the appellate authority, under Section 27 of the Act.;