- (1.) ASHOK Bhushan, J. Heard counsel for the petitioner and the learned standing counsel.
(2.) BY this writ petition the petitioner has prayed for quashing of order dated 12-4-1985 passed by the 5th Additional District Judge, Meerut in Revenue Appeal No. 14 of 1977 and the order dated 31-12-1976 passed by the Prescribed Authority. Notice under Section 10 (2) of the U. P. Imposition of Ceiling on Land Holdings Act, 1960 was issued to the petitioner on 28-1-1974. Petitioner filed objection to the aforesaid notice. The Prescribed Authority vide order dated 5-10-1974 held the land to the un- irrigated. The Prescribed Authority, however, observed that the sale deed claimed by the petitioner in favour of the Prahalad Singh appears to be doubtful. BY order dated 5-10-1974 Prescribed Authority held that there is no surplus land with the petitioner. Appeal was filed by the State against the said order which was dismissed on 1-7-1975. After enforcement of the U. P. Act No. II of 1975 a fresh notice was issued to the petitioner under Section 10 (2) on 21-6-1976 which was objected by the petitioner. The Prescribed Authority vide its order dated 31-12-1976 declared 3 Bighas 14 Bishwa and 14 Biaswansi land of plot No. 399 as surplus. An appeal was filed by the petitioner against the above order which was dismissed on 25-4-1978. Petitioner filed a writ petition No. 4707 of 1978 challenging the aforesaid order which writ petition was allowed by this Court vide its judgement dated 19-4-1979. This Court after setting aside the order of the appellate authority remanded the case to the Prescribed Authority for deciding afresh in accordance with law. After the aforesaid judgment of the High Court the appellate authority has now again decided the matter vide its order dated 12-4-1985 against which the present writ petition has been filed. Learned counsel appearing for the petitioner in support of the writ petition raised the following submissions: - 1. The findings of the appellate authority with regard to the land being irrigated is not in accordance with the provision of Section 4-A of the Act and further the appellate authority has not determined the question of irrigated or unirrigated land in accordance with the order of the High Court dated 19-4-1979. The submission is that the land is unirrigated and no basis has been given for holding it to be irrigated as permissible under Section 4-A of the Act by the appellate authority. 2. The second submission of the counsel for the petitioner is that the sale deed which was executed on 18-9-1971 has wrongly been ignored by the Courts below. The submission of the counsel for the petitioner is that the State of Uttar Pradesh has failed to discharge its burden that the sale deed was not bona fide. 3. The third submission of the counsel for the petitioner is that in earlier ceiling proceedings the Prescribed Authority has held plot No. 399 to be unirrigated and the said finding will operate as res- judicata in further ceiling proceedings and in view of the aforesaid finding it was not open for the Prescribed Authority to hold the land irrigated. Learned counsel for the petitioner in support of the aforesaid submissions has relied on several judgments of this Court which will be discussed while discussing the said submission. The learned standing counsel has supported the impugned order passed by the appellate authority and has submitted that the appellate authority has not committed any error in relying on the records prepared under the consolidation proceedings. The submission is that there is no prohibition in Section 4-A in looking to the records prepared during the consolidation proceedings and the said records form as relevant material for consideration on arriving on the findings regarding irrigated or unirrigated land. Learned standing counsel further contended that the burden to prove that the sale-deed was bona fide was on the tenure holder in which the petitioner miserably failed. He has submitted that no error has been committed by the respondents in not accepting the sale-deed.
(3.) LASTLY the learned standing counsel submitted that the findings earlier given will not operate as res- judicata in view of Section 38-B of the Act. He further submitted that while recording earlier finding the Prescribed Authority has not even looked into the Khasra 1378, 179 and 1380 Fasli and those findings were not in accordance with the provisions of the Act and will not operate as res-judicata. I have considered the submission of both the parties and perused the record.;