Allowed

State of U.P.through Collector Lakhimpur Kheri v. Addl.Commissioner Lucknow Division Lucknow

Allahabad HC5 Mar 2024WRIC/3000010/2000

Case brief

AI extract

What is this about?

The Apex Court held that appellate proceedings under the UP Ceiling Act are governed by CPC, granting the authority power of review under Section 114 CPC. It set aside an arbitrary review order that excluded the respondent's land without recording satisfaction, remanding the matter to the Prescribed Authority.

What did the court decide?

Impugned order dated 13.10.1997 set aside; matter remitted to Prescribed Authority; proceedings to be concluded within four months.

State of U.P.through Collector Lakhimpur Kheri Vs… — Property and Title | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC-LKO:19876

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Court No. - 6

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Case :- WRIT - C No. - 3000010 of 2000

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Petitioner :- State Of U.P.Through Collector Lakhimpur Kheri Respondent :- Addl.Commissioner Lucknow Division Lucknow

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Counsel for Petitioner :- C.S.C Counsel for Respondent :- C.S.C

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Hon'ble Alok Mathur,J.

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In the present case, notices were issued to private respondents and as per office report dated 22.12.2023, service of notice on respondent no. 2, 3/1, 3/2 and 4 have been deemed to be sufficient. Despite service of notice, no one has appeared and consequently, this Court proceeds to decide the matter exparte against the aforesaid respondents.

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Heard Shri S.K. Khare, learned Standing Counsel for the State/petitioner and perused the material available on record.

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This writ petition has been filed by the State assailing the order dated 13.10.1997 passed by the appellate authority in exercise of powers under Section 13 of the Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960 thereby reviewing its previous order dated 27.06.1997 and allowing the appeal preferred by the respondents.

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Shri S.K. Khare, learned Standing Counsel for the State/petitioner has submitted that the proceedings under Section 10 (2) of the Act of 1960 were initiated against the original tenure holder and were concluded by the Prescribed Authority by means of order dated 28.06.1986 declaring 86.465 acres of land including the land in Village Madanyan and Garhi Parasadpur as surplus. The State took over the possession of the land, which was declared surplus on 14.03.1987 and the land

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was subsequently allotted to the land-less labourers according to the Act. The objections against the notice under Section 10 (2) of the Act of 1960 were filed after substantial delay on 06.10.1989 before the Prescribed Authority by respondent nos. 2 and 3 stating that they the Bhumidhar of the disputed plot and also produce the copy of the registered sale deed dated 03.07.1979 from one Israr Khan. It is further stated that the predecessor in interest had perfected the title by adverse possession over the said land and had also filed a suit under Section 229-B of the U.P. Z.A. & L.R. Act for declaration of his right, which suit was decreed on 13.05.1974. The Prescribed Authority duly considered the objections filed by the private respondents and rejected the same by means of order dated 27.08.1990, against which an appeal was filed before the learned Additional Commissioner, Lucknow Division, Lucknow. The said appeal was heard by the appellate authority finally and allowed by means of judgment dated 27.06.1997 and the matter was remanded to the Prescribed Authority to decide the case afresh after giving adequate opportunity of hearing to the parties.

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On the same day i.e., 27.06.1997 respondent nos. 2 and 3 filed an application for review before the Appellate Authority. The Appellate Authority by means of impugned order dated 13.10.1997 has allowed the same and modified its previous order dated 27.06.1997. Before the appellate authority, the State had filed its objections stating that the appellate authority in exercise of power under the Act of 1960 did not have any power of review. The appellate authority rejected the said contentions stating that the provisions of Code of Civil Procedure,1908 are applicable on appellate proceedings under the Act of 1960 and he is fully empowered to review its own order and proceeded to reject the objections raised by the State and allowed the

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application for review and setting aside the order of Prescribed Authority without remanding the same, which had been done by him previously in its order dated 27.06.1997.

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Learned Standing Counsel while assailing the impugned order has submitted that under Section 13 of the Act of 1960 provides for an appeal against the order of the Prescribed Authority.

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For the sake of convenience, the provisions of Section 13 of the Act of 1960 are quoted hereasunder being quoted below:-

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13. Appeals. - (1) Any party aggrieved by an order under subsection (2) of Section 11 or Section 12, may, within thirty days of the date of the order, prefer an appeal to the [Commissioner] within whose jurisdiction the land or any part thereof is situate.

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(2) The [Commissioner] for "District Judge" (w.e.f. 13.1.1986). shall dispose of the appeal as expeditiously as possible and his decision thereon shall be final and conclusive and be not questioned in any Court of law.

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(3) Where an appeal is preferred under this section, the [Commissioner] may stay enforcement of the order appealed against for such time and on such conditions as may be considered just and proper :

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[Provided that the enforcement of the order appealed against shall not be stayed in respect of that part of the land the surplus character of which was either not disputed in an objection under sub-section (2) of Section 10 or under sub-section (2) of Section 11 or is not disputed in the appeal and any stay order passed under this sub-section before twenty-eighth day of September, 1970 shall, on an application being made in that behalf to the appellate Court by the State Government, be modified by that Court accordingly :

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Explanation. - For the purposes of this proviso any dispute respecting the regularity, validity or legality of a notice under Section 9 or Section 10 or of the proceedings before the Prescribed Authority shall not, by itself, be deemed to be a dispute respecting the surplus character of land.]

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Learned Standing Counsel submitted that a bare perusal of Section 13 indicates that no provision of appeal has been provided and, therefore, the appellate authority could not have reviewed its orders in absence of specific provisoin providing for review .

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I have heard the learned Standing counsel and perused the record.

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A perusal of Act of 1960 indicates that as per Section 38 of the Act of 1960 power and procedure to be followed by the appellate court has been prescribed which reads as under:-

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" 38. (1) In hearing and deciding an appeal under this Act, the appellate court shall have all the powers and the privileges of a civil court and follow the procedure for the hearing and disposal of appeals laid down in the Code of Civil Procedure, 1908.

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(2) Where under the provisions of this Act, an appeal has to be heard by the 1[Commissioner] he may either hear the appeal himself or transfer it for hearing to 2[Additional Commissioner] subordinate to him.

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3[Power to call for particulars of land from tenure holders] 3[ 38-A. (1) Where the prescribed authority or the appellate court considers it necessary for the enforcement of the proceedings under this Act, it may, at any stage of the proceedings under this act, require any tenure-holder to furnish such particulars by affidavit in respect of the land held by him and members of his family as may be prescribed.

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(2) The particulars of land under sub-section (1) may be taken into consideration in determining the surplus land of such tenure-holder.

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3[Bar against Res Judicata]

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38-B. No finding or decision given before the commencement of this section in any proceeding or on any issue (including any order, decree or judgment) by any court, tribunal or authority in respect of any matter governed by this Act, shall bar the retrial of such proceeding or issue under this Act, in accordance with the provisions of this Act as amended from

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time to time. "

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A perusal of the aforesaid Section would indicate that while exercising the appellate jurisdiction under Section 13 of the Act of 1960, the provisions contained under Section 38 have to be followed. As per the provisions of Section 38 the appellate authority has all the powers and privileges of a civil court and follow the procedure for hearing and disposal of the appeal as laid down in the Civil Procedure Code,1908. Undoubtedly, Section 38 is legislation by reference to the civil court and accordingly all the powers and procedures in the Civil Procedure Code, 1908 will come to the aid and assistance of the appellate authority while deciding the appeal under Section 13 of the Act of 1960. Once a reference is made according to the provision of Civil Procedure Code, 1908 empowering the appellate authority in exercise of the jurisdiction in deciding the appeal under Section 13, undoubtedly the provisions of Section 114 of Civil Procedure Code, 1908 providing for review would also be applicable to the appellate proceedings.

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It is in aforesaid circumstances that this Court is of the considered view that all the provisions and the procedure and power contained in Civil Procedure Code, 1908 will be applicable to the appellate authority including the power of review under Section 114 of Civil Procedure Code, 1908. Accordingly, the contentions of learned Standing counsel in this regard is rejected.

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The next issue raised by the Standing counsel is with regard to validity of the impugned order dated 13.10.1997. He submits that the appellate authority while deciding the appeal against the order of the Prescribed Authority dated 6.8.1989 had allowed the appeal filed at the behest of the respondents and remanded the matter back to the Prescribed Authority for determination afresh and while passing the said order the

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appellate authority had taken note of the fact that in the meanwhile the proceedings under Section 229 B of U.P.Z.A. and L.R. Act had been concluded on 13.5.1974 from which it was evident that the respondents had purchased the said land from Sri Israr Khan, who was the Sirdar of the said land.

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The respondents in his objections under Section 11(2) had also considered that the disputed land had no concern with the recorded tenure holder Sri Gulab Bahadur Singh and finding that there was prima facie case made out in favour of the respondents he had directed the Prescribed Authority to look into the issue raised by the respondents and to pass fresh orders. It is also relevant to observe that the Prescribed Authority while considering the objections of the respondents had rejected his objections merely on the ground of delay in as much as the said objections according to him were filed after the period of limitation of three years.

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Considering the fact that the Prescribed Authority has rejected the objections on the ground of delay, no finding can be sustained on merits once the objections have been dismissed on the ground of delay. The appellate authority was of the considered opinion that prima facie case has been made out by the respondent which deserve to be looked into by the Prescribed Authority in accordance with law which, in opinion of this Court, was justified and he had rightly remanded the matter vide order dated 27.6.1997 as all such issues could have been examined by the Prescribed Authority.

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It is surprising that while allowing the review the appellate authority has rightly concluded that he has the power of review but without even examining or recording his satisfaction on the contentions of the respondents he has proceeded to exclude their land from the holdings of recorded tenure holders and it is

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noticed that in this regard there is no discussion by the appellate authority and there is no finding recorded by him regarding his decision for excluding the land of the respondents and, hence, such an order would be arbitrary and illegal.

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On the face of it, the impugned order dated 13.10.1997 is absolutely illegal and arbitrary and accordingly deserves to be set aside.

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In light of the above, the order impugned dated 13.10.1997 is set aside. In light of the appellate order dated 27.6.1997 the matter is remitted back to the Prescribed Authority to comply with the directions issued by the appellate authority therein.

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Let the remand proceedings be concluded expeditiously by the Prescribed Authority in terms of the directions dated 27.6.1997 and conclude the same within next four months after giving opportunity of hearing to the concerned authorities in accordance with law.

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The writ petition thus stands allowed.

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(Alok Mathur, J.)

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Order Date :- 5.3.2024 RKM.

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Digitally signed by :- RAKESH KUMAR MAURYA High Court of Judicature at Allahabad, Lucknow Bench

State of U.P.through Collector Lakhimpur Kheri v. Addl.Commissioner Lucknow Division Lucknow

Case brief

What is this about?

What did the court decide?

State of U.P.through Collector Lakhimpur Kheri v. Addl.Commissioner Lucknow Division Lucknow

Case brief

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What did the court decide?

What the court decided

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