- (1.) S. U. Khan, J. Heard learned Counsel for the parties.
(2.) CEILING proceedings under Section 10 (2) of U. P. Imposition of CEILING on Land Holdings Act (hereinafter referred to as CEILING Act) were initiated against Hub Lal respondent No. 4. By order dated 6-9-1976, prescribed authority declared an area of 30 Bigha 13 Biswa agricultural land as surplus land. In appeal the said order was substantially maintained and the surplus area declared by the prescribed authority was reduced only by four biswa and four biswancies. Thereafter consequent order was passed by the prescribed authority on 3-11-1979. On 26-7-1980, petitioner Nos. 5 and 6 Gyan Bahadur Singh and Bal Krishna Singh filed objections under Section 11 (2) of the CEILINGs Act claiming that half of the land treated to be of respondent No. 4 by CEILING authority belonged to them. Similar objections were filed on 8-8-1980 by petitioner Nos. 1 to 4. The Objections were rejected as being barred by time however appellate Court reversed the said order and remanded the matter to prescribed authority to decide the objections on merit. Prescribed authority on 23-11-1981 rejected the objections against which appeal was filed by the petitioners being Revenue (CEILING) Appeal No. 881 of 1981. VII A. D. J. , Allahabad through judgment and order dated 8-11-1983 set-aside the order of prescribed authority and remanded the matter to the prescribed authority who again on 16-1-1985 rejected the objections of petitioners hence another appeal being Revenue Appeal No. 70/9/86 was filed. By that time jurisdiction to hear ceiling appeals had been conferred upon the Commissioner/additional Commissioner instead of District Judge/additional District Judge. Additional Commissioner, Allahabad Division Allahabad allowed the appeal on 20-1-1987 and again matter was remand to the prescribed authority. Additional Commissioner held that the earlier order of remand dated 8-11-1983 had not been complied with by the prescribed authority. The said order of Additional Commissioner is Annexure 2 to the writ petition. Thereafter again prescribed authority/additional Collector Allahabad through order dated 15-9-1988 rejected the objections of the petitioners. Fourth time appeal was filed by the petitioners being CEILING Appeal No. 2/88. This time Commissioner, Allahabad Division Allahabad dismissed the appeal on 24-2- 1990, hence this writ petition. In the first remand order Annexure 1 to the writ petition, it was mentioned that it had been held by the consolidation authorities on 22-1-1971 that petitioners were also co-sharers of the land in dispute (which was treated to be exclusive land of Hub Lal by ceiling authorities ). The argument of State was that even though the order of consolidation authority (SOC) was prior to 24-1-1971, however, it was actually mutated in the revenue records after 24-1-1971 hence it ought to be ignored. In para 11 of the said judgment Annexure 1 to the writ petition it was observed as follows : "in view of my above discussion and observation, I am of the view that plots specifically recorded in the names of appellants by the order of the consolidation authorities are to be excluded from the holding of Hub Lal and determination of Ceiling area and surplus land has to be done according to the entries in favour of appellants and that of Hub Lal as ordered by the consolidation authorities. With this purpose, I have no option but to remand the case to the prescribed authority. " In the second remand order (Annexure 2 to the writ petition), it was observed that extract of Khatauni for the year 1376-78 Fasli wherein the order of S. O. C. was incorporated was filed before the appellate Court and it appeared that the said extract of Khatauni was not forwarded to the prescribed authority. It was further observed that relevant Khataunis has been filed before the Court and the same should be sent to the prescribed authority.
(3.) IT appears that the order of S. O. C. was not filed. By virtue of explanation I to Section 5 (6) of the Ceiling Act, it is provided that a declaration of a person as a co-tenure-holder made after 24-1-1971 in a suit or proceedings shall be deemed to be transfer and shall be ignored. However even independently of Section 5 (6) and its explanation if an order passed prior to 24-1-1971 is on the basis of compromise then it may be ignored as an attempt to over come the provisions of Ceilings Act, if it is proved that it was done only for avoiding the liability to surrender surplus land. However unfortunately the order of SOC has not been filed hence it cannot be said that whether it was contested order or based upon compromise or mock contest.;