E. C. Agarwal, J. - (1.) :-
(2.) THESE two writ petitions have been filed against the judgment of the District Judge, Gorakhpur, dated 22-3-1983. By an order dated 14-5-1979, the Competent Authority declared 6216-18 square metre as excess vacant land with Lal Behari. His share being half in plot 64 of village Chaksa Hussain was 4.02 acers working out the same on the basis of square metres, it came to 8134.27 square metres. To this was added the constructed area of 82.21 square metres. After deducting 2000 square metres, which was the permissible ceiling limit for Gorakhpur, the Competent Authority found 6216.68 square metres as surplus. In the appeal filed by Lal Behari. an application under Order XLI Rule 27 CPC was filed alongwith some documentary evidence by him. The application was rejected by the learned District Judge on the ground of being not maintainable as, in his opinion. Order XLI rule 27 CPC was not applicable to an appeal filed under section 33 of Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as the Act). The District Judge, thereafter, decided the appeal on 22-3-1983 and reduced the surplus area by 82.21 square metres, being the covered area. As a result of this adjustment, 6234.47 square metres was declared as surplus. Aggrieved by this adjustment, the State of U. P. has filed writ no. 7816 of 1983, whereas Lal Behari, who is respondent 1 in this petition, also has preferred writ petition no. 7844 of 1983. After hearing counsel for the parties, I find that the District Judge committed an error in granting adjustment of 82.41 square metres which was the area covered by constructions. This view prevailed in this Court before the decision of the Supreme Court in State of U.P. v. L.J. Johnson, 1983 AWC 798. The Supreme Court has not approved the interpretation of Section 4 (9) made by this court in State of U. P. v. L. J. Johnson, 1978 AWC 731. According to the Supreme Court, the land covered under the constructions has also to be taken into account for the purposes of calculating the vacant land. Therefore, the adjustment granted by the District Judge was contrary to law.
(3.) COMING to Writ Petition No. 7844 of 1983, the argument advanced was that the District Judge erred in rejecting the application filed under Order XLI Rule 27 CPC. The submission was that although Order XLI Rule 27 CPC has not been specifically applied to the proceedings of an appeal under section 33, but as appeal before the District Judge is decided as a Civil Court, the Code of Civil Procedure applicable to a court in deciding a civil appeal will be applicable to the case of an appeal under section 33 of the Act. Under section 33 of the Act, the Union Government is entitled to appoint a Prescribed Authority who would be known as the appellate authority for the purposes of deciding an appeal preferred under the same. It is in exercise of this power that an appeal filed under section 33 is heard and decided. As a District Judge is a Court, the Code of Civil Procedure would be applicable to the proceedings of an appeal filed before him. The Code of Civil Procedure lays down the procedure which is designed to facilitates justice and fulfil its ends. The District Judge while deciding an appeal is since a civil court, Order XLI Rule 27 of the Code of Civil Procedure will apply to him when he decides an appeal filed under section 33 of the Act.;