Shishir Kumar - (1.) -This writ petition has been filed in the nature of certiorari quashing the impugned order dated 30.7.1996 passed in Appeal No. 4 of 1995-96.
(2.) THE facts arising out of the present writ petition are that a notice under Section 10 (2) of U. P. Imposition of Ceiling on Land Holding Act was issued to petitioner Mahavir Singh. In view of the aforesaid notice, an area of 16.57 acres was proposed as surplus. An objection was filed on behalf of petitioner claiming therein that his son is major, as such, he is entitled for two additional hectares of surplus land. It was also alleged in the objection filed on behalf of petitioner that petitioner has transferred the land and the transferees are in actual physical possession of the land in dispute. THE prescribed authority vide its order dated 30.6.1976 confirmed the notice and declared the land mentioned in the notice under Section 10 (2) of the Act. Aggrieved by the aforesaid order, petitioner filed an appeal under Section 13 of the Act. THE said appeal too was dismissed vide its judgement and order dated 5.8.1978. Petitioner aggrieved by the aforesaid order, preferred Writ Petition No. 9362 of 1978, which was dismissed on 6.11.1978. Sri Satyendra Pal Singh, moved an application for recalling of the order by prescribed authority as well as by appellate authority. The said application was rejected on 12.3.1979. An appeal was filed that too was dismissed. A writ petition was filed as Writ Petition No. 12972 of 1981, the same was dismissed and against the said order, special leave petition was filed before Hon'ble Supreme Court, which was also dismissed on 1.11.1984. It appears that an application was moved by Naib Tehsildar for further proceeding in the matter on 25.11.1988. The prescribed authority on the basis of the aforesaid fact issued notice to petitioner. Petitioner filed an objection on the ground that villages have been notified under the Consolidation of Holding Act and due to consolidation, the area of petitioner has been substantially reduced. Sri Samar Pal Singh and the son of petitioner Mahavir Singh filed an objection under Section 11 (2) of the Act inter alia on the ground that holding recorded in the name of Mahavir Singh, petitioner was seer khudkast of Sri Sawant Singh and after his death, interest was devolved upon Ram Bux Singh after death of Ram Bux Singh, interest was devolved upon Phulia and Lakhan Singh and after death of Lakhan Singh, interest was devolved upon Mahavir Singh and the objector Samar Pal Singh was born in the family of Mahavir Singh before the abolition of Zamindari, as such, objector is entitled for 1/2 share in the seer and khudkast land recorded in the name of Mahavir Singh and the said land has illegally been clubbed in the holding of petitioner. Prescribed authority vide its order dated 31.3.1995 allowed the objection of Samar Pal Singh and rejected the objection of petitioner regarding reduction of area during consolidation. Petitioner against the part of the order passed by prescribed authority filed an appeal, which was got dismissed for non-prosecution and a review application was filed by petitioner before prescribed authority regarding the claim of reduction in area in consolidation. The said review application was allowed on 26.12.1995, State filed an appeal on 12.6.1995 under Section 12 and aforesaid appeal was allowed by the lower appellate court vide its judgement and order dated 30.7.1996.
(3.) IT has been submitted by learned counsel for petitioner that while deciding the appeal, the lower appellate court in para 6 of the judgment made un-called observation regarding the judgment dated 31.3.1995, through which a relief was granted to Samar Pal Singh and the appellate court has directed for filing the appeal against order dated 31.3.1995. Sri K. K. Gupta, Commissioner, wrote a letter dated 31.7.1996 to the Commissioner, Moradabad Mandal, Moradabad for filing an appeal against the order dated 31.3.1995, through which the objections of Sri Samar Pal Singh was allowed. Another letter dated 8.8.1996 was written by Commissioner to District Magistrate, Bijnor for filing an appeal against the order dated 31.3.1995 along with an application under Section 5 of the Limitation Act. An appeal was filed against the order dated 31.3.1995 by the State along with an application for condonation of delay. The notice was served upon Mahavir Singh and the appellate court decided the appeal against the order dated 31.3.1995 and 26.12.1995. IT has been brought to the notice of the Court that against the order in Appeal No. 7 of 1995-96 decided on 28.2.1997, Sri Samar Pal Singh has also filed a Writ Petition No. 12767 of 1997. It has been submitted by Sri Anil Sharma, learned counsel for the petitioner that it is settled position in law that before taking decision of surplus land, if the area of tenure holder is reduced during consolidation operation, tenure holder is entitled for the benefit of reduced area under the Ceiling Act. Further submission has been made that appellate authority has acted in a very illegal manner directing concerned authority to file an appeal against the judgement by which Samar Pal Singh has been given benefit by prescribed authority regarding his rights as seer khudkast land.;