- (1.) SHITLA Prasad Srivastava, J. Though this petition was listed for admission but as the parties have exchanged counter and rejoinder affidavits and as the learned coun sel for the parties have agreed; this petition is being disposed of finally.
(2.) THE brief facts are that aggrieved by the order dated 25-4-90 passed by respon dent No. 2, the petitioners have filed this petition under Article 226 of the Constitu tion of India. THE petitioners' contention is that they were landless agricultural Labourer and when the land was declared as surplus land in a proceeding under the provisions of U. P. Imposition of Land Holdings Act started against Mohd. Shafi & others, the State after taking possession of the surplus land settled the land with the petitioners in accordance with law on a lease. THE petitioners on the basis of the lease-deed came in possession and con tinued in possession. It is further contended that in pursuance of the lease-deed the names of the petitioner were recorded in the revenue record and it is admitted in para 7 of the writ petition that some dispute between respondent No. 1 and 3 and the State Government, was going on, but the petitioner were not aware of such dispute. THEy only came to know of it when in 1990 some official of respondent No. 1 tried to disposes the petitioners from the land in dispute. It is further stated that on 25-4-90 some order was passed by the respondents and Parwana-amal-daramad was issued. It is further stated that prior to 17-9-90 the petitioners were not aware of the order dated 25-4-90 passed by respondent No. 2 Grievance of the petitioners is that as the petitioners were allottees in possession of the property on the basis of a valid allot ment order and a deed was executed in their favour by the State, respondent No. 2 has no jurisdiction to pass such order without giving any notice to the petitioners as the order amounts to cancellation of the lease granted to the petitioners in respect of the land in question. THE petitioners have at tacked the aforesaid order on number of grounds, but the main ground of attack is that the petitioners should have been given opportunity of hearing before passing the impugned order. A Counter-Affidavit has been filed on behalf of private respondent Mohd. Shafi. He has denied all the allegations con tained in the writ petition on the ground that no doubt initially certain land was declared as surplus land but an appeal was filed by the tenure-holders before the appel late authority. That appeal was dismissed. The tenure-holder aggrieved by the order of the appellate authority filed writ petition No. 4820 of 1983. That writ petition was allowed in part on 9-10-84 and the matter was sent back to the appellate authority to re-determine the surplus land if any with the tenure-holder in accordance with law in the light of the observation contained in the body of the judgment and the tenure holder was given liberty to give a choice as permissible under the law. It is stated that when the matter went back before the appellate authority, the appellate authority reduced the surplus land by 1. 77 acres in village Manawala. Then an application under Sec tion 12-A of the Act was moved by respon dent No. 3 on 23-6-89 to the Prescribed Authority (Ceiling) praying that instead of plot No. 253 of village Naglia Narain the petitioner should be given plot Nos. 255 M and 200 M (1. 77 acre) of village Naglia Narain. The deponent have annexed a cer tified copy of this application as Annexure 2 to the counter-affidavit. It is stated that a report was asked from Naeb Tahsildar who recommended that the choice of opposite party No. 3 be accepted. The report was accepted by the impugned order dated 25-4- 90. The contention of the respondents is that since it was not a proceeding for cancel lation of the lease granted to the petitioners as provided under Section 27 (4) of the Act, therefore, there is no question of any oppor tunity of hearing for the petitioners and they are not necessary party in a matter of choice which is provided under Section 12-A of the Act and as the choice was given to the tenure-holder whose land has been declared surplus, therefore, this adjustment was be tween the State and the tenure- holder and the allottee has no right or interest in this adjustment. A counter-affidavit has been filed on behalf of the State also on technical ground that the order under Section 12-A of the Act is appealable under Section 13.
(3.) HEARD learned counsel for the par ties at length. Learned counsel for the petitioner Sri Subodh Kumar has vehe mently urged that since the petitioners were granted lease in respect of the land which was declared surplus land by the Prescribed Authority, lease deed was executed in favour of the allottees, names have been mutated in the revenue paper, they came in possession and continued in possession, then respon dent No. 2 had no jurisdiction to allow the application for choice without hearing the petitioners as that would amount cancellation of the lease of the particular plot which has been given in choice by the tenure-holder. His further contention was that even if the order which was subsequently set aside in appeal on the basis of which they were granted Patta, but the petitioners continued in possession, in equity they have a right of hearing and they should be impleaded as party to the proceeding before respondent No. 2. In reply it has been urged by learned counsel for the respondent Sri K. M. Sinha that it was not a proceeding under Section 27 of the Act before the Commissioner which lays down that before cancelling the lease, opportunity of hearing must be given to the leasee, but it was proceeding of choice which given to the tenure-holder in view of direction given by the High Court in a writ petition and it was a right of the tenure-holder under Section 12 (A) whether the petitioners who were allottees were party or not is not a point for consideration. His contention is that the impugned order is not vitiated in law. In my view the argument of Sri K. M. Sinha has much force. A bare perusal of the order of the High Court passed in the writ petition would show that after setting aside the order passed by the appellate authority, the matter was sent to the Prescribed authority to re- determine the ceiling area and the tenure-holder was given liberty to give choice in respect of the land as to which land he wants to retain or which he wants to partwith. The Prescribed authority is only a competent authority to deal with the matter and if an area was subsequently reduced by the prescribed authority which was on earlier occasion and no appeal was filed against that judg ment by the State then respondent No. 2 has committed no error in law in allowing the application of the tenure-holder for giving choice. Therefore, the choice subject was not a dispute between the petitioners and the tenure-holder, rather it was only an ad justment between the tenure-holder and the State which wanted to take the land of the petitioner. Therefore, the petitioners have no right to interfere in the matter of choice and they were not a necessary party in a proceeding of choice. In other way also their lease has not been cancelled by the order of respondent No. 2, rather an area was declared surplus and the State has taken possession which was given to the petitioners, but subsequently the order was modified, changed or cancelled then the petitioners have no right to continue. The State is entitled to acquire that much area which was declared to be surplus land keeping in view the choice of the tenure- holder given by him under Section 12-A of the Act. The learned Standing counsel has urged that this petition is not maintainable as the order under Section 12-A is also a subject-matter of appeal. As the petition is being disposed of on merit. The question whether any appeal was filed by the petitioners or not is of little significance.;