Kareshan @ Krishnapal Singh vs State of U.P. and Others

Amreshwar Pratap Sahi, J.—Heard Sri Pradeep Kumar Rai, learned Counsel for the Petitioner, learned Standing Counsel for the Respondent Nos. 1, 2 and 3 and Sri Ajay Kumar Sharma for the Respondent Nos. 6 to 24.

Affidavits have been exchanged between the contesting parties. The State is the main contesting party. A stay vacation application along with counter affidavit has been filed by Sri K.K. Awasthi posted as Tehsildar, Rampur Maniharan district Sarahanpur.

This writ petition arises out of a litigation under proceedings of the U.P. Imposition of Ceiling on Land Holdings Act, 1960. The Petitioner is the son of Dipti Singh who was the tenure holder and had been put to notice u/s 10(2) of the U.P. Imposing of Ceiling on Land Holdings Act. The matter was contested by Dipti Singh against whom the matter became final up to the High Court, where after objections u/s 11(2) were filed by the Petitioner contending that he being the son of Dipti Singh, born before the abolition of Zamindari, was entitled to his separate share in the holding which has been declared as surplus. Apart from this other objections have been raised which were considered.

This matter was contested between the parties and the Prescribed Authority passed an order rejecting the objection of the Petitioner u/s 11(2) against which the Petitioner filed an appeal. The appeal was allowed on 15.7.2007 and a direction was issued for deciding the matter afresh in the light of the observations made by the appellate authority.

A restoration application was filed by the contesting Respondent allottees which was rejected. The Prescribed Authority thereafter proceeded to decide the matter upon remand and reduced the area of surplus land. Against this order four appeals were filed, one by the Petitioner, the other by the State, the third by the other sons of Dipti Singh and the fourth by the contesting Respondent allottees. All these appeals were entertained by the appellate authority and in the appeal filed by the State an interim order was also passed. Challenging the said interim order passed in the appeal the Petitioner filed a writ petition before this Court being Writ Petition No. 37974 of 2009 which was dismissed observing that all the appeals as referred to hereinabove have to be disposed of simultaneously by a common order after clubbing the same.

The appellate authority under the impugned order has now proceeded to purportedly decided all the appeals simultaneously by the impugned order dated 13.8.2009.

The Petitioner, who was one of the Appellants and had filed a separate appeal being Appeal No. 6 of 2008-09, complains that even though the claim of the Appellant has been noticed, the appellate authority has neither decided the same nor recorded any findings. The contention of the learned Counsel for the Petitioner therefore is that the impugned order is in violation of the judgment of this Court dated 29.7.2009 and the Petitioner has been non suited. The Petitioner further contends that the appellate authority has failed to record any finding much less any reasons on the grounds taken in his appeal.

A counter affidavit has been filed on behalf of the State and the said allegations could not be explained as to why the appellate authority has failed to record any finding on the appeal filed by the Petitioner. As a matter of the fact learned Standing Counsel contends that if that is so, the matter can be remanded back to the appellate authority for decision in accordance with law.

Learned Counsel for the contesting Respondent allottees contends that as a matter of fact on merits the Petitioner has no claim.

This aspect cannot be looked into so long the statutory power conferred u/s 13 is not exercised by the authority in accordance with the provisions of the Ceiling Act. In the instant case it is apparent that the appellate authority did not proceed to decide the appeal of the Petitioner even though there was a specific direction vide order dated 29.7.2009. The appellate authority has noticed the case of the Petitioner but has not recorded any finding thereon. Accordingly in the opinion of the Court the order dated 13.8.2009 is unsustainable and the writ petition deserves to be allowed.

Accordingly the order dated 13.8.2009 is quashed. The appellate authority shall now proceeded to decide the appeal of the Petitioner as well as the other appeals as per the order dated 29.7.2009 on merits after considering the entire claim of the Petitioner.

The writ petition is allowed. No order as to costs.