- (1.) SHITLA Prasad Srivastava, J. This petition under Article 226 of the Constitu tion of India has been filed by the petitioner against an order dated 24-12-82 passed by the prescribed authority and the order dated 16-8-83 passed by the 2nd Addl. District Judge, Fatehpur. The brief facts as stated in the writ petition are that in a proceeding for declara tion of ceiling area certain land was declared as surplus land of the petitioner. It is stated that the petitioner was not served with any notice and the order was passed ex pane declaring 2. 26 acres of land as surplus land. When the petitioner came to know he filed an application to set aside ex pane order but that application was rejected by the Prescribed Authority on 17-7-82. The petitioner indicated his choice by filing an application on 6-8-82 but the application for choice was rejected by the prescribed Authority on 24-12- 82. On the ground that the proceedings for declaration of surplus land have become final, as such the applica tion was not maintainable. It is stated that the petitioner filed an appeal against this order of the prescribed Authority rejecting his choice, but the appeal was dismissed by the appellate authority that no appeal is maintainable under Section 12 of the U. P. Imposition of Ceiling on Land Holdings Act, hereinafter referred to as the Act only. It is stated by the petitioner that he is in possession of the property which has been declared surplus and the proceedings were ex pane proceedings, as such the petitioner could not get any opportunity to indicate his choice. He filed an application for restora tion but the same was rejected. The petitioner had given his choice before the possession was taken, therefore, the prescribed Authority has illegally rejected the application for choice.
(2.) THE ground of attack of the judg ment of the prescribed Authority is that the choice can be given under Section 12-Aeven after declaration of surplus land under Sec tion 12. Further ground is that as the petitioner was in possession and State has not taken possession, the application for choice was maintainable. Counter-affidavit has been filed on behalf of the State in this case. In para 7 of the counter-affidavit it is stated that posses sion was taken on 28-5-82 and mutation in revenue papers have also been made. The petitioner voluntarily gave up the possession of 2. 26 acres irrigated land to the State. Therefore, the application for choice was not maintainable. Para 7 of the counter-af fidavit has been denied in the rejoinder-affidavit filed by the petitioner. In para 7 of the rejoinder affidavit it is stated that the petitioner did not voluntarily deliver pos session, rather he is still in possession and the name of the petitioner in the revenue paper is still existing. It is stated in the rejoinder-affidavit that irrigation slips during the period of 1982-1983 and 1984 issued to the petitioner regarding the land in question will be shown at the time of hearing of the case. It is also stated that the petitioner will show that other evidence at the time of arguments on the confirmation of the stay order, to prove that he is still in possession of the land in question. Learned counsel for the petitioner has vehemently urged that as the petitioner was in possession, therefore, the choice can be given by the petitioner before the State has taken possession of the area declared as surplus land. He has placed reliance on case reported in A. L. R. (Summary of Cases) 118 Debt Saran v. State of U. P. and others. In this case it was held that the petitioner could have a right to revise his earlier choice by giving a fresh choice till such period his right as a tenure- holder subsists in the land in dispute. On this basis learned counsel for the petitioner has urged that unless the pos session is taken by the State, the petitioner's right to give choice remains with him and as the petitioner has stated that he is in posses sion, he was very much in his legal right to file application for choice, reliance on 1981 A. C. J. 593- Ghasitoo Singh and Others. v. Dis trict Judge Muzaffar Nagar and Others. In this case the scope of Section 12-A was considered by the court, and it was laid down that Section 12-A is a separate provision and even though it will come into play in the court in proceeding under Section 12. It is not neces sary that its scope should be kept confined only to the proceeding under Section 12. On the basis of the judgment learned counsel for the petitioner has urged that application under Section 12-A is also a proceeding. Therefore, the choice can be given by the petitioner by filing an application under Section 12-A even if it was not given either at the stage of Section 9 or in any other proceeding as mentioned in Section 12-A of the Act. He has also placed reliance on 1988 R. D. 314-Ghasi Ram v. The Prescribed Authority and Others. , but that case has no relevance as in this case the question of maintainability of the appeal against an order passed by the prescribed Authority rejecting application for choice under Section 12-A was discussed. It was held that the appeal was not maintainable. It is important to mention here that here also the petitioner has filed an appeal against the judgment of the prescribed Authority rejecting the application under Section 12-A and the appellate court passed an order, but since the appeal was not maintainable the order of the appellate authority cannot be said to be an order in accordance with law. Keeping in view the judgment of this Court that the petitioner has a right to give choice before the possession was taken by the State, I am of the view that when the petitioner has been dispossessed from the area declared as surplus land his right to give choice has come to an end. For this purpose, it is apparent from the record that in para 7 of the counter-affidavit it is stated that possession of the surplus land was taken on 28-5-82. The petitioner has filed rejoinder- affidavit. In reply to this fact in para 7 of the rejoinder- affidavit the petitioner has stated that possession has not been taken and he is still in possession. In subsequent part of this paragraph of the rejoinder-affidavit though it is mentioned that the irrigation slips will be shown at the time of hearing of the case and other evidence will be also shown to prove that he is still in possession but the petitioner has not filed any document with the rejoinder affidavit, nor has he shown any document at the time of hearing. Learned counsel for the petitioner urged that he should be given some time to produce these documents. The rejoinder- affidavit was filed in 1984. Counter-Affidavit was served on 10-7-84. The petitioner had a chance to file the docu ments alongwith the rejoinder-affidavit which was filed by him in 1984. After 1984 more than 12 years have gone but the petitioner has not produced any document to prove his possession. Learned counsel for the petitioner has urged that the burden of proof was on the State, therefore, a presumption should be drawn that the petitioner is still in possession. I am not convinced with this argument. The petitioner should have come with clean hand by filing the revenue papers alongwith the rejoinder- affidavit to prove that he is in possession and when specific denial was made by the State and the petitioner could not file any document alongwith the rejoinder-affidavit, rather agreed to produce some document at the time of hearing then the burden of proof was on the petitioner that he is in possession which has not been discharged by him. Therefore, I hold that the prescribed authority has com mitted no error in law in rejecting the ap plication of the petitioner for choice and as the order rejecting application under Sec tion 12-A of the Act was not appealable under Section 13 of the Act, therefore, the appellate order is without jurisdiction and has nothing to do in this case.
(3.) THE result is that the petition is dis missed, but there will be no order as to costs. Petition dismissed. .;