- (1.) HEARD Sri Ram Surat Saroj learned counsel for the petitioners and Sri R.C.Singh for the respondent nos.6 to 8 and the learned standing counsel for the respondent nos.1 to 5.
(2.) LEARNED counsel for the contesting respondent does not propose to file any counter affidavit and he contends that the matter can be disposed of on the basis of material which is already on record together with a perusal of the order of the Prescribed Authority dated 22.1.1986. A copy of the order of the Prescribed Authority has been placed before this Court. In proceedings under? the U.P.Imposition of Ceiling on Land Holdings Act, 1960? against? one Raj Bahadur Kunwar the Prescribed Authority vide judgment dated 22.1.1986 declared an area of 1.94 acres of land as surplus in the irrigated sense, and accordingly the said land was to be excluded from the holding of the tenure holder. It is undisputed that the said order remained unchallenged and has become final. The Ceiling Authority proceeded for the allotment of the said land,? and instead of 1.94 acres allotted? an area of 5.59 acres land of the tenure holder. It is this allotment which came to be challenged by the successors of the tenure holder in? proceedings under of Section 27 of the 1960 Act before the Commissioner praying for cancellation of the said allotment. The matter proceeded and? the learned Additional Commissioner allowed the application under of Section 27 on 12.4.2007. ?The petitioners along with the other allottees challenged the said order before the High Court in four writ petitions that were allowed by the judgment dated 23.3.2011 with a direction to the Additional Commissioner to decide the matter afresh in accordance with the directions given therein. The direction given by the High Court is to the following effect: The objectors have failed to discharge the burden to prove their case.? It is therefore desirable to restore the matter back to the additional Commissioner (Judicial), Gorakhpur Division, Gorakhpur to decide the matter afresh, in the light of the following in particular: The order dated 22.1.1986 declaring 1.94 acre of land as surplus passed by the Prescribed Authority contains Schedule-A wherein the plot numbers, their areas along with village, Tahsil and Khata numbers declared to be? surplus have been given in? terms of irrigated and unirrigated land. The authority below shall decide the issue with reference to the plot numbers and areas which have been declared surplus under the aforesaid order dated 22.1.1986. The authority concerned shall also consider whether the plots which have been allotted to the petitioners originally belonged to SriRaj Bahadur, the father of the contesting respondents or not. It was also submitted that an application was filed by the contesting respondents, though it has been denied by the learned counsel that they do not want to press their objections.A copy of the said application dated 14th of March, 2007 purported to have been filed by the contesting respondents has been annexed as? Annexure 1 to the rejoinder affidavit.The concerned authority shall take into consideration as to whether any such application was filed by the contesting respondents or not and if it was so filed, then its effect on the present proceedings in the impugned order it is noted that the mutation in favour of State of U.P. has not yet been made in the? revenue records over the surplus land, if it is so, then, it reflects the apathy of the revenue officials and necessary disciplinary proceedings against the erring official maybe taken. It is desirable that the Additional Commissioner may dispose of the matter afresh preferably within a period of two months from the date of filing of certified copy of this order before him. In the result, all the writ petitions succeed and are allowed and the impugned order dated 12th of April, 2007 is set aside. The matter is remanded back to the authority below to decide the matter afresh, in the light of this judgment. The learned Additional Commissioner has now proceeded to pass the impugned order dated 29.10.2011 holding that the allotments made were illegal and that the land that was declared surplus to the extent of 1.94 acres should be identified? after variation from C.H.Form No.41 and 45 and then the matter should be proceeded with in case the said land has not already been allotted. The petitioners have assailed the said order contending that the allotments have been made in their favour which were valid and they are entitled for allotment in as much as there is no finding that the petitioners were not eligible for allotment.
(3.) SRI Ram Surat Saroj learned counsel for the petitioners submits that apart from this even fif resh allotment has to be made, it is the petitioners who are to be considered as they were entitled for allotment at the time when the land came to be declared surplus on 23.1.1986. He contends that the authority be directed to act accordingly. SRI R.C.Singh learned counsel for the contesting respondents urges that the respondents have absolutely no concern with the 1.94 acre of land that was declared surplus and as a matter of fact the impugned order has been passed in compliance of the judgment of the High Court dated 23.3.2011 which does not require any interference. If the petitioners are seeking any relief of saving their allotments the same can relate to 1.94 acres as per the Schedule described in the judgment dated 22.1.86 and not beyond the same. The impugned order does not suffer from any infirmity so as to warrant any interference under Article 226 of the Constitution of India. Learned standing counsel for the respondent nos.1 to 4 and the learned standing counsel for the Gaon Sabha have supported the impugned order. Having considered the aforesaid submissions and having perused the record it is evident that the parties do not dispute that the land which was declared surplus was only to the tune of 1.94 acres? as per the judgment dated 22.1.86 and as recorded by the High Court in the earlier judgment dated 23.3.2011. In such a situation the learned Commissioner has rightly arrived at the conclusion that the earlier allotments were illegal. It goes without saying that the land which has been declared surplus vests in the State only to the extent of the area as contained in the order dated 22.1.86 and not beyond that. The petitioners therefore would be entitled for consideration for allotment only against such land which vests in the State as per order of the Prescribed Authority and not in respect of any other land.;