R.R.K.Trivedi - (1.) HEARD learned counsel for petitioner and learned standing counsel.
(2.) THIS petition has been filed questioning the order dated 20-2-1992 passed by the prescribed authority under the U. P. Imposition of Ceiling on Land Holdings Act, 1960 (hereinafter referred to as the Act) by which be has refused to abate the proceedings on the ground that substitution application for bringing the heirs of tenure-holder late Shri Jyoti Prasad was not moved within time prescribed by law. Facts giving rise to the petition are that Jyoti Prasad was served with a notice under section 10 (2) of the Act in C. L. H. Form 4 together with a statement in C.L. H. Form 3 calling upon him as to why the land mentioned therein should not be determined as surplus. It appears that while the proceedings were pending, an application was moved for transfer of proceedings before the Commissioner of the Division. While this transfer application was pending, Jyoti Prasad died on 4-3-1989. An application was given before the Commissioner on 27-3 1989 intimating about death of Jyoti Prasad and on that application by his order dated 9-5-1989 the heirs of Jyoti Prasad, namely Smt. Kusum Lata, widow, and Arbind Kumar and Neeraj, two sons of the deceased tenure holder, were brought on record. However, no such step was taken before the prescribed authority. The transfer application was disposed of on 10-11-1989. Thereafter the proceedings resumed before the prescribed authority and an objection was raised by petitioner and others that proceedings have abated and they should be dropped. The prescribed authority by his order dated 20-2-1992 refused to abate the proceedings and proceeded further. The prescribed authority has refused to abate the proceedings for two reasons, firstly, that the heirs were already brought on record in miscellaneous proceedings before the Commissioner for transfer of the proceedings which were part of the main proceedings against the tenure-holder. The second reason given by the prescribed authority is that on 7-9-1991 the order dated 10-11-1989 passed by the Commissioner was received. Thereafter it was directed to enquire about the heirs of the deceased tenure holder. On the basis of that report was submitted on 10-12-1991 by Tahsildar intimating the heirs. The prescribed authority on the basis of the order dated 9-5-1989 passed by the Commissioner brining the heirs on record and also on the basis of the report dated 10-12-1991 of the Tahsildar directed all the heirs to be brought on record. It appears that on the basis of the report of the Tahsildar, Smt. Anjul and Smt Kusumlata have also been impleaded as heirs Learned counsel for petitioner, however, submitted that the order passed in transfer application bringing the heirs oh record could not be legally assumed in main proceedings pending before the prescribed authority and the proceedings stood abated as the heirs were not brought on record within time allowed by law. It has also been submitted that there was no application moved for setting aside the abatement and for condoning delay. The learned counsel has placed reliance on a case Balram v. The Illrd Additional District Judge, Kanpur, 1983 ALJ 91, wherein the order abating the appeal for non-substitution of the heirs was upheld by this Court. The view taken by this Court was confirmed by Honourable Supreme Court in the same case which was taken upto Supreme Court. The judgment is Balram v. Illrd Additional District Judge, 1983 ALJ1 543.
(3.) THE learned Standing Counsel on the other hand justified the order of the prescribed authority rejecting the prayer of the petitioner to abate the proceedings. I have beared both the learned counsels and in my opinion the aforesaid cases relied on by the learned counsel for the petitioner cannot be applied in the facts of the present case. This Court as well as Honourable Supreme Court upheld the order agating appeal on the ground that the provisions of Order XXII were applicable to appeals in view of the provisions contained in section 38 (1) of the Act which is being reproduced below ; "38 (1) ; In hearing and deciding an appeal under this Act, the appellate Court shall have all the powers and the privileges of a civil court and follow the procedure for the hearing and disposal of appeals laid down in the Code of Civil Procedure, 1908.";