- (1.) N. L. Ganguly, J. This petition under Article 226 of the Constitution has been filed by the petitioner for quashing the judgments dated 29-8-1987 and 24-3-1988, Annexures 8 and 6 respectively to the writ petition, passed by the Additional Commissioner, acting as Appellate authority under the U. P. Imposition of Ceiling on Land Holdings Act, 1960 and the prescribed authority under the said Act. The other prayer is to issue a writ of mandamus restraining the respondent-authorities not to give effect to the impugned orders.
(2.) IN the proceedings taken under the U. P. Imposition of Ceiling on Land Holdings Act, 1960, hereinafter referred to as 'the Act', notification under Section 9 (2) of the Act was issued. The tenure holder petitioner did 0ot file any objection or any statement to the said notice. Thereafter notice under Section 10 (2) of the Act was issued by the prescribed authority, which was served on the petitioner on 7-4-1976. After receipt of the notice the petitioner submitted objection dated 21-4-1976 and stated number of family members - the petitioner, his wife and five children wore stated therein. Out of five children three sons and two daughters were there. The daughters were said to be unmarried. One son was said to be major. It was said that during consolidation operation the area of the hold ing of the petitioner only remained as 54 Bigba 12 Biswa 16 Dhur. It was stated that in Khata No. 2 of village Baradih half share was of Maya Kant. The petitioner had given his choice for the land situated in village Kaprauara, Lohra Deora to be declared as surplus land of the petitioner. It was also said that plot numbers and area shown in the notice were not correct. All the plots in question were situated across river Jamuna. The prescribed authority framed necessary issues and gave oppor tunity to the petitioner to lead evidence. The petitioner only filed evidence i. e. , certificate from the Welfare Officer, Office of the Accountant General. U. P. showing the number of family members of the petitioner. A list showing detailed of the plots was given by the petitioner which he wanted to be declared as surplus. No other evidence was adduced by him. After hearing the counsel for the petitioner the prescribed authority found that the certificate given by the Welfare Officer of the office of the Accountant general dated 3-5- 1976 shows that in the family of the petitioner, his wife, two sons and two daughter were there. The daughters were unmarried and the sons were minor. Thus the prescribed authority accepting the certificate of the Welfare Officer held that the two sons of the petitioner were minor. The petitioner had not led any evidence to prove otherwise. The prescribed authority since found the number of family members to be one more than five, as such 2 Hct. land was permissible to be retained by the petitioner The petitioner was initially given notice for declaring 161 Bigha 19 Biswa 10 Biswansi as surplus which was reduced by the prescribed authority and 140 Bigha 1 Biswa 7 Biswansi was declared as surplus. It was also mentioned that prior to the amendment in the Act in Case No. 190/184 of 1974 the petitioner's surplus land declared was 140 Bigha 6 Biswa 2 Biswansi. Thus no further declaration was needed. The notice issued by the department was rejected by the judgment dated 28-8-1976. An appeal was filed against the aforementioned judgment. The appellate authority found that after the amendment in the Act fresh notice was issued to the petitioner and in response to the said notice under Section 10 (2) of the Act objection was again filed by the petitioner. The appellate authority observed that even in the case the prescribed authority declared 140 Bigha 1 Biswa 7 Dhur as surplus. The learned appellate court observed that this omission was not an illegality but a mere irregularity, which is curable, since the petitioner had notice after the amendment in the Act and had filed his fresh objection and also filed document.
(3.) BEFORE the appellate court no objection, so far as the declaration itself is concerned was made and had only pressed before it that the surplus land should be taken as far as possible out of the choice, which he had made before the prescribed authority through his application dated 26-6-1976, The appellate authority maintaining the order about surplus land to the extent of 140 Bigha 1 Biswa 7 Dhur partly allowed the appeal and in taking out the surplus land the choice, so far as it relates to village Bawadih disclosed by the appellant should be considered and adjusted accordingly. The judgment dated 17-11-1976 after the amendment of the Act had become final. The petitioner submitted an application under Section 5 with affidavit of Jaya Kant, petitioner, for deciding the objection afresh after condoning the delay. In the affidavit the petitioner had stated that during consolida tion proceedings sufficient land of his had been reduced. It is said that he was under an impression that the area of the land, which had gone in Consolidation, must have been given to him. When the affidavit was shorn it was said that on the same date the Lekhpal had informed the petitioner that no benefit of the reduction in area of the land on account of the Consoli dation had been given and that no land would be left for the petitioner. Thus it was prayed that the objection be decided on merits afresh. An objection was again filed with application under Section 5 of the Limitation Act. In the said objection it was said that half share in the holdings of village Baradih belongs to his brother Maya Kant and in consolidation proceedings such decisions have been given. It was said that in village Deora Kapodora, Lohra there is no land in the name of the petitioner nor any land of the said village belongs to him, which has wrongly been shown in the notice as belonging to him. It was further repeated that during consolidation operations sufficient area of the land has been reduced and the petitioner has not been given any benefit of the said Act. It was also said that the Abadi land of the petitioner was not excluded and taken into consideration while calculating the agricultural holding. It was also said that the entire land is unirrigated situated on Jamuna Par. No land was surplus. As such it was prayed that the notice issued to the petitioner be quashed.;