Sibghat Ullah Khan, J. - (1.) THIS writ petition arises out of proceedings for determination of surplus agricultural land with Rang Lal since deceased and survived by petitioners and proforma opposite parry No. 4 Govind Prasad under U.P. Imposition of Ceiling on land Holdings Act. Last order by the Prescribed Authority was passed against the tenure holder on 31.7.2002 by the Prescribed Authority (Ceiling)/A.D.M. (Finance and Revenue) Behraich, in Case No. 280 renumbered several times thereafter the last number being 17 State v. Rang Lal. (Petitioner No. 1 and opposite party No. 4 are sons of Rang Lal and petitioner No. 2 is son of petitioner No. 1). Earlier also orders had been passed against Rang Lal which were challenged by him through writ petition No. 18 of 2002, which was decided on 3.4.2002 by this Court and matter was remanded. Thereafter the order dated 31.7.2002 was passed. Against the said order petitioner filed appeal No. 46. Commissioner, Devi Patan Mandal, Gonda dismissed the appeal on 13.12.2002 hence this writ petition. Through the impugned orders, the orders earlier passed declaring 19.3 Acre land in terms of irrigated land as surplus with original tenure holder Rang Lal, were maintained/reiterated and it was held that he was not entitled to any benefit due to reduction in area during consolidation proceedings and application for choice of surplus land to be taken filed on 17.12.1999 was held to be incompetent. In the order passed by the prescribed authority dated 31.7.2002 specific plots with their areas to be taken as surplus land were indicated.
(2.) IN this writ petition on 30.7.2013 following order was passed "Sri S.K. Mehrotra, learned Counsel for the petitioners has placed on record copy of Annexure 6 to the earlier writ petition (writ petition No. 18 (ceiling) of 2002) which is an application dated 17.12.1999 given by the petitioners before the Prescribed Authority under the Ceiling Act/ADM, Bahraich giving choice of 15.197 acres of land which may be taken as surplus land. The argument is that only this much land is liable to be surrendered by the petitioners and the authorities below are wrongly insisting that petitioners should surrender 19 acres of land. This controversy of 15 acres or 19 acres of land being surplus would be decided after wards. First petitioners shall surrender the land which according to them is liable to be surrendered i.e. 15.197 acres of land. Learned Counsel for the petitioners states that petitioners have got absolutely no objection if possession of 15.197 acres of land as given in the aforesaid application is taken from them. Copy of the application dated 17.12.1999 has also been supplied to Sri V.V. Singh, learned Standing Counsel. Sri V.V. Singh, learned Standing Counsel is directed to immediately instruct the collector/deputy collector to take possession over the land mentioned in the said application and intimate the Court about that. List on 23.8.2013. If due to any reason State Government is not in a position to take possession over the entire land of 15.197 acres then at least possession must be taken over as much land out of that as possible. Office is directed to supply a copy of this order free of cost to Sri V.V. Singh, learned Standing Counsel." Learned Standing Counsel Shri Y.S.M. Yadav, states that as per his instructions aforesaid area of 15.197 acre land has been surrendered by the petitioners and opposite party No. 4 to the State Authorities. Initially through order dated 9.5.1978, prescribed authority declared 19.3 acre land in terms of irrigated land as surplus with the tenure holder. Same order was again passed by the prescribed authority on 3.7.1989, 1.6.1998/18.2.1999 and on 7.2.2001. Against last order Appeal No. 34 Nanak Chand v. State was filed and the Appellate Court, Commissioner, Devi Patan Mandal, Gonda through order dated 5.3.2002 as well as this High Court through order dated 3.4.2002 (Passed in writ petition No. 18 (Ceiling) of 2002 directed against the order dated 5.3.2002) had directed the Prescribed Authority to consider the question of reduction in area during consolidation proceedings.
(3.) I find that the view of the Courts below in the impugned order dated 31.7.2002 and 13.12.2002 that petitioner was not entitled to the benefit of about 4 acres of land which was the extent of reduction in his area during consolidation proceedings is erroneous in law. As earlier directed by Additional Commissioner and this Court it was the duty of the Prescribed Authority to give consideration for reduction in the area during consolidation proceedings to the petitioners and opposite party No. 4 irrespective of the reason due to which reduction might have taken place. Moreover the correctness of reduction in area in consolidation could also not be seen by the ceiling authorities. In the earlier order dated 5.3.2002 Commissioner had held that during the course of consolidation the area of the tenure holder had been reduced from 19.3 acres to 15.197 acre hence reduction was to the extent of 4.104 acre. There was clear cut direction by the Commissioner that surplus area must be deducted by 4.104 Acre. Accordingly the Prescribed Authority had to grant benefit of reduction to the petitioner.;