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State Of U.P. And Others v. D.J. & Others - WRIT - C No. 4188 of 1985  RD-AH 12956 (26 July 2007)
(Court No. 23)
Civil Misc. Writ Petition No. 4188 of 1985
State of U.P. Through Collector Jalaun at Orai Versus District Judge, Jalaun and others.
Hon'ble S.U.Khan J
Heard learned counsel for the parties.
Proceedings for declaration of surplus land under U.P. Imposition of Ceiling on Land Holdings Act 1960 were initiated against Ram Nath father of the original contesting respondents No. 2 to 5. Certain area was declared as surplus. Ram Nath filed appeal being Ceiling Appeal No. 208 of 1976. Civil Judge, Jalaun at Orai decided the appeal on 5.4.1977. The operative portion of the judgement of the appellate court (Annexure III to the writ petition) is quoted below.
" The appeal is partly allowed. The judgement and order of the learned Prescribed Authority is modified to this extent that the ceiling and surplus area of the appellant shall be recalculated holding plot No. 20 as unirrigated area. The rest of the appeal is dismissed. The parties shall bear their own costs."
The said judgement was maintained by the High Court in the writ petition and by the Supreme Court in SLP. Thereafter, Ram Nath died and under some confusion fresh notice was issued by the prescribed authority to the legal representatives of Ram Nath who are respondent No. 2 to 5 in this writ petition. Thereafter, Naib Tehsildar ceiling filed an application Praying that as proceedings had already been finalised, hence, the second notice be withdrawn. Accordingly, prescribed authority/ SDO Jalaun through order dated 13.3.1984 withdraw the second notice and held that only recalculation matter was to be heard. Against order dated 13.3.1984 contesting respondents filed Misc. (Ceiling) Civil Appeal No. 44 of 1984. District Judge, Jalaun, allowed the appeal on 17.9.1984 and through the said order prescribed authority was restrained from proceeding further with the case consequent upon the earlier remand order by the appellate authority as in the opinion of the learned District Judge ceiling proceedings had abated. The said judgment dated 17.9.1984 has been challenged by the State through this writ petition. Second sentence of the second para of the impugned judgement is quoted below:
"He (Ram Nath) went in appeal and the appellate authority remanded back the case with directions, regarding a particular plot that it should be decided by the prescribed authority, whether it is irrigated or unirrigated."
The learned District judge made an utterly wrong presumption in the said sentence. In the earlier order dated 5.4.1977 passed by the appellate court, copy of which is annexure 3 to the writ petition (operative portion of which has been quoted in second para of this judgment) no point was remanded to be determined again. The contention of original tenure holder in respect of plot No. 20 was finally accepted by the appellate court and it was held in favour of the Ram Nath that the said plot was unirrigated. Thereafter prescribed authority was required only to recalculate the ceiling area / surplus land. There was no question of abatement of proceedings. In the order dated 13.3.1984 against which appeal was filed, Prescribed authority rightly held that the legal representatives of Ram Nath original tenure holder could only object if there was any error in the calculation.
Accordingly writ petition is allowed. Impugned order dated 17.9.1984 is set-aside. Order of the prescribed authority dated 13.3.1984 is restored.
Contesting respondents are permitted to give their choice of surplus land to be taken. However, this permission is conditional. The contesting respondents shall appear before the prescribed authority on 17.9.2007 and on that very date they must give choice of surplus land. Along with application, latest copy of Khatauni and khasra should also be annexed. If on 17.9.207 choice is not given then in no case they must be permitted to give choice thereafter.
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