# Naimish Vallabh v. Addl. Commissioner Lucknow Division

- **Citation:** (2025) 9 ILRA 536
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-09-12
- **Case number:** Writ C No. 3000050 of 1997
- **Bench:** Irshad Ali
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/naimish-vallabh-v-addl-commissioner-lucknow-division-53924
- **Pages:** 10

## Headnote

C.S.C., Askari Naqvi, Madhulika Yadav, S.K.
Tripathi

ISSUE FOR CONSIDERATION
Whether, after the final disposal of Appeal No.
466/1975 on 11.10.1976 and the appellate
order attaining finality due to non-challenge, the
petitioner was entitled to reopen the ceiling
proceedings by filing applications after 14 years
and maintaining a fresh appeal (No. 86/89-90)
against the Prescribed Authority's order deciding
Issues 3, 4 and 5.

HEADNOTE
U.P. Imposition of Ceiling on Land Holdings Act,
1960 - Sections 10(2), 4-A, 14 - Ceiling
proceedings - Objections rejected - 48.16
irrigated acres declared surplus - Appeal partly
allowed - Remand confined to Issues 3, 4, 5 -
Appeal kept pending - Prescribed Authority
recorded findings and returned case - No
objection filed - Appeal finally decided on
11.10.1976 - Order not challenged - Finality
- Subsequent appeal not maintainable - Writ
petition dismissed.
HELD
Notice under Section 10(2) was issued to
the petitioner's father. Objections were
rejected. Prescribed Authority declared
48.16 irrigated acres surplus. In Appeal
No.
466/1975,
the
appellate
court
affirmed findings on Issues 1, 2, 6, while
remanding Issues 3, 4, 5 under Section 4A to the Prescribed Authority with a
direction to return findings keeping the
appeal pending. Findings were recorded
on 12.07.1976; no objection was filed by
the tenure holder. The appeal was finally
decided on 11.10.1976. The order attained
finality and the State took possession
under Section 14 and allotted the land to
landless persons. After 14 years, the
petitioner sought reopening of the matter
9 All. Naimish Vallabh Vs. Addl. Commissioner Lucknow Division
537
and filed Appeal No. 86/89-90 against the
order deciding Issues 3, 4, 5. The
appellate authority dismissed the appeal
as not maintainable, holding that the
Prescribed Authority's order had merged
into the appellate order dated 11.10.1976
and no fresh appeal lay thereafter. Held:
Once Appeal No. 466/1975 was finally
decided on 11.10.1976, the findings on
remanded
issues
merged
into
the
appellate order and attained finality. A
subsequent appeal against the same
findings was not maintainable. There was
no jurisdictional error in dismissal of
Appeal
No.
86/89-90.
Writ
petition
dismissed. (E-5)

CASE LAW CITED
Ram Asrey v. Additional Commissioner, Jhansi
Division,
2008
(105)
RD
608;
Ram Bhajan v. Chief Revenue Officer/Prescribed
Authority, Mirzapur, 2001 (44) ALR 541.

List of Acts
U.P. Imposition of Ceiling on Land Holdings Act,

## Text

536 INDIAN LAW REPORTS ALLAHABAD SERIES
is in the preceding step to a sale deed of the
house as well as the land attached to the
building. The above rejection is on the
basis of the Government order as well as
judgment and order passed by this Court
directing that the property belonging to
the Cantonment Board shall not be
registered by the Sub Registrar until and
unless prior permission is obtained from
the concerned authority. The order of the
Government has obviously been passed
keeping in mind national interest and the
security threat to the assets of the army
and to the army personnel staying in the
cantonment area. Furthermore, the Sub
Registrar has refused to register the
agreement to sell and against the said
order, there is a provision under Section
72 of the Registration Act to file an
appeal and thereafter there is a provision
to challenge the order of appeal under
Section 77 of the Registration Act by
filing a suit. Therefore, the petitioner is
directed to avail the appropriate remedy,
if he desires to do so.

28. In light of the reasons above
mentioned, we are of the view that the writ
petition filed by the petitioner is not
maintainable and is accordingly dismissed.
There shall be no order as to costs.
----------
(2025) 9 ILRA 536
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 12.09.2025

BEFORE

THE HON'BLE IRSHAD ALI, J.

Writ C No. 3000050 of 1997

Naimish Vallabh ...Petitioner
Versus
Addl. Commissioner Lucknow Division
 ...Respondent
Counsel for the Petitioner:
P.L. Misra, Amit Kumar Pathak, Askari
Naqvi,
Mohammad
Alishah
Faruqi,
Mohammad Aslam Khan, Rajesh Mishra,
Rakesh Pathak, S.K. Tripathi, Sibte Alam
Khan

Counsel for the Respondent:
C.S.C., Askari Naqvi, Madhulika Yadav, S.K.
Tripathi

ISSUE FOR CONSIDERATION
Whether, after the final disposal of Appeal No.
466/1975 on 11.10.1976 and the appellate
order attaining finality due to non-challenge, the
petitioner was entitled to reopen the ceiling
proceedings by filing applications after 14 years
and maintaining a fresh appeal (No. 86/89-90)
against the Prescribed Authority's order deciding
Issues 3, 4 and 5.

HEADNOTE
U.P. Imposition of Ceiling on Land Holdings Act,
1960 - Sections 10(2), 4-A, 14 - Ceiling
proceedings - Objections rejected - 48.16
irrigated acres declared surplus - Appeal partly
allowed - Remand confined to Issues 3, 4, 5 -
Appeal kept pending - Prescribed Authority
recorded findings and returned case - No
objection filed - Appeal finally decided on
11.10.1976 - Order not challenged - Finality
- Subsequent appeal not maintainable - Writ
petition dismissed.
HELD
Notice under Section 10(2) was issued to
the petitioner's father. Objections were
rejected. Prescribed Authority declared
48.16 irrigated acres surplus. In Appeal
No.
466/1975,
the
appellate
court
affirmed findings on Issues 1, 2, 6, while
remanding Issues 3, 4, 5 under Section 4A to the Prescribed Authority with a
direction to return findings keeping the
appeal pending. Findings were recorded
on 12.07.1976; no objection was filed by
the tenure holder. The appeal was finally
decided on 11.10.1976. The order attained
finality and the State took possession
under Section 14 and allotted the land to
landless persons. After 14 years, the
petitioner sought reopening of the matter
9 All. Naimish Vallabh Vs. Addl. Commissioner Lucknow Division
537
and filed Appeal No. 86/89-90 against the
order deciding Issues 3, 4, 5. The
appellate authority dismissed the appeal
as not maintainable, holding that the
Prescribed Authority's order had merged
into the appellate order dated 11.10.1976
and no fresh appeal lay thereafter. Held:
Once Appeal No. 466/1975 was finally
decided on 11.10.1976, the findings on
remanded
issues
merged
into
the
appellate order and attained finality. A
subsequent appeal against the same
findings was not maintainable. There was
no jurisdictional error in dismissal of
Appeal
No.
86/89-90.
Writ
petition
dismissed. (E-5)

CASE LAW CITED
Ram Asrey v. Additional Commissioner, Jhansi
Division,
2008
(105)
RD
608;
Ram Bhajan v. Chief Revenue Officer/Prescribed
Authority, Mirzapur, 2001 (44) ALR 541.

List of Acts
U.P. Imposition of Ceiling on Land Holdings Act,
1960.

List of Keywords
Ceiling proceedings - Surplus land - Remand
- Maintainability of appeal

CASE ARISING FROM
Judgment and order dated 31.07.1996 passed
by Additional Commissioner-I, Lucknow Division
in Ceiling Appeal No. 86/89-90 affirming the
order dated 16.08.1990 of the Prescribed
Authority.

Appearances for Parties
Advs For Petitioner: P.L. Misra, Amit Kumar
Pathak, Askari Naqvi, Mohammad
Alishah
Faruqi, Mohammad Aslam Khan, Rajesh Mishra,
Rakesh Pathak, S.K. Tripathi, Sibte Alam Khan.
Advs For Respondents: C.S.C., Askari Naqvi,
Madhulika Yadav, S.K. Tripathi.

(Delivered by Hon'ble Irshad Ali, J.)

1. Heard Sri Mohd. Arif Khan, learned
Senior Advocate assisted by Sri Mohd.
Aslam Khan, learned counsel for the
petitioner,
Sri
S.P.
Maurya,
learned
Standing Counsel for the State-respondent
and Ms. Madhulika Yadav, learned counsel
for the proposed respondents.

2. By means of the present writ
petition, the petitioner has prayed as under
:-

"(a) That by means of a writ,
direction or order in the nature of certiorari
the judgment and order dated 31.7.1996,
passed by the Additional Commissioner I,
Lucknow, as contained in Annexure No.9
to the writ petition, as well as the judgment
and order dated 16.8.1990, passed by the
Prescribed Authority, as contained in
Annexure No.7 to the writ petition, be
quashed;

(b) That by means of a writ, order
or direction in the nature of mandamus the
opposite parties no. 2 and 3 be directed to
decide the dispute in accordance with the
order dated 13.3.1976, passed by the
Prescribed Authority;

(c)...

(d)..."

3. The present writ petition is directed
against the judgment and order dated
31.07.1996
passed
by
Additional
Commissioner-I, Lucknow, in Ceiling
Appeal No. 86/89-90, whereby the appeal
was dismissed as not maintainable and the
order dated 16.08.1990 of the Prescribed
Authority was affirmed.

4. Factual matrix of the case is that the
petitioner's father Shri Digvijai Prasad was
issued notice under Section 10(2) of the
U.P. Imposition of Ceiling on Land
Holdings Act, 1960 (as amended in 1972)
538 INDIAN LAW REPORTS ALLAHABAD SERIES
on
25.08.1974.
He
filed
objections
contending :-

(i) Sale of 12.25 acres in favour of
Smt. Nanhee Devi in 1970, duly mutated on
22.01.1971; she was in separate possession
since then. It was also pleaded that separation
had taken place between the petitioner and
Smt. Nanhee Devi 15 years ago and since
then, they are living in two distinct villages
and were not living as husband and wife.

(ii) Partition of 1971 between
petitioner and his father by order of Sub
Divisional Officer dated 14.04.1971; land
mutated in petitioner's favour.

(iii) Independent tenure holders:
Smt. Nanhee Devi, being a separated wife,
was an independent recorded tenure holder,
hence, her land could not be clubbed with
that of the petitioner's father.

(iv) The unirrigated land and Usar
land of village Saidpur has been shown as
irrigated land.

5. The objections of the father of the
petitioner were dismissed by the prescribed
authority and it was held as under :-

(i) that partition suit was pending
as on 24.01.1971; petitioner was a minor at
that time.

(ii) Sale deed in favour of Nanhee
Devi was before 24.01.1971 but separation
was not judicial.

6.
Consequently,
62.79
acres
(unirrigated) (equivalent to 48.16 irrigated
acres) was declared as surplus land.

7. An earlier appeal, registered as
Appeal No. 466/1975, had been partly
allowed by the Ist Additional District
Judge, Sitapur, on 13.03.1976, whereby
findings on some issues were affirmed but
issues 3, 4, 5 were remitted to the
prescribed authority for fresh findings. Shri
Digvijai Prasad had also preferred Writ
Petition
No.
1086/1976,
which
was
dismissed vide judgment and order dated
30.8.1978.

8. After the death of Shri Digvijai
Prasad, the present petitioner was substituted
and carried on the proceedings. His statutory
appeal, registered as Appeal No. 86/89-90
and the same was transferred to the court of
Additional
Commissioner-I,
Lucknow
Division, Lucknow for disposal. In pursuance
to the judgment and order dated 13.3.1976,
the prescribed authority was required to give
findings on the issue Nos.3, 4 and 5 and
return the same to the appellate court. The
prescribed authority did not decide these
issues in the light of the observations made
by the appellate court.

9. The Appeal No. 86/89-90 was
finally dismissed on 31.07.1996 by the
Additional Commissioner, Lucknow, as not
maintainable. A review application filed
against the said order is stated to be still
pending. Meanwhile, the opposite parties
are proceeding with the allotment of the
surplus land. The petitioner claims to be in
possession and apprehends irreparable
injury in the event of dispossession.

10. Submission of learned counsel for
the petitioner is that the appellate authority
has failed to exercise the jurisdiction vested
in it and erred in dismissing the appeal as
not maintainable instead of adjudicating it
on merits.

11. It is further submitted that the
Prescribed
Authority
did
not
record
9 All. Naimish Vallabh Vs. Addl. Commissioner Lucknow Division
539
findings on issues 3, 4 and 5 in the manner
directed by the appellate court in its order
dated 13.03.1976, resulting in failure of
justice.

12. Learned counsel for the petitioner
submits that the order of the Prescribed
Authority merged into the appellate order
dated 13.03.1976 and hence, until disposal
of the appeal, the determination of surplus
land could not be treated as final. The
acceptance of choice of land by the
Prescribed Authority was premature and
beyond jurisdiction as the appeal was
pending.

13. It is also submitted that lands
standing in the names of the petitioner and
Smt.
Nanhee
Devi,
being
those
of
independent tenure holders, could not be
clubbed with the holdings of Shri Digvijai
Prasad.

14. In support of his submission, he
placed
reliance
upon
the
following
judgments :-

(i) Ram Asrey and others Vs.
Additional
Commissioner
Jhansi
Division, Jhansi and others [2008 (105)
RD 608]. Relevant paragraphs-8, 9, 13 and
14 are being quoted as under :-

"8 . Taking support of the aforesaid
section, learned Counsel for respondents
submits that unless and until order has
become final, no allotment can be made of
surplus land declared of a tenure holder.
Reliance has been placed upon a judgement
reported in 1984 ALJ 403 Raj Bahadur and
Ors. v. District Judge, Hamirpur and Anr.
and reliance has been placed upon Para 4 of
said
judgement.
The
same
is
being
reproduced below:

"4. The petitioners claimed to be
the allottees of the land. It is said that the
allotment was made on 25,6.1976. It should
be seen that no allotment could be made on
the said date as the ceiling proceedings had
not become final before the Prescribed
Authority. The Prescribed Authority finally
disposed of the ceiling case on 2 J. 12.1977
as is clear from the judgment of this Court
in the earlier writ petition (Annexure 2 to
this petition). Thereafter, an appeal was
filed. The appellate court decided initially
on 3.2.1979. I have already stated above
that against the said appellate judgment
dated 3.2.1979, the earlier writ petition
was filed and 1 allowed the same and
remanded the case again to the appellate
court, which finally decided the appeal by
the aforesaid impugned judgment dated
5.9.1981. It is, therefore, obvious that
during the pendency of these ceiling
proceedings first before the Prescribed
Authority
and
thereafter
before
the
appellate court, no valid allotment could be
made in favour of anyone. In the ceiling
proceedings the alleged allottees did not
have any locus standi. The contest was
between the tenure-holder and the State. It
is not necessary to consider the case of the
transferees etc. from the tenure-holder to
determine
whether
in
the
ceiling
proceedings such transferees-have a locus
standi or not. However, so far as the
alleged allottees are concerned. I am clear
in my mind that they did not come at all in
the picture till the ceiling proceedings
became final and the notification under
Section 14 of the Act is issued. I have
already stated above that the final verdict
of the appellate court was that the
tenureholder did not hold any surplus land
and, therefore, the notice under Section
10(2) of the Act stood discharged. In such a
situation, there was no question of any
540 INDIAN LAW REPORTS ALLAHABAD SERIES
surplus land vesting in the State and being
the subject-matter of any allotment.

9 . Another judgement has been
relied upon by learned Counsel for
respondents
reported
in
MANU/UP/0297/2001 : 2001 (92) RD
538Ram
Bhajan
v.
Chief
Revenue
Officer/Prescribed Authority , Mirzapur
and Ors. Reliance has been placed upon
para 13, 14, 15, and 16 of the said
judgement. The same are being reproduced
below:

13. It is well settled that the
matter of declaration of the land as surplus
is between the State and the tenure holder
and nobody comes in between and thus
once the State has chosen not to take up the
matter to the higher forum, challenging the
judgment of the Prescribed Authority by
which notice for declaration of the land as
surplus itself was withdrawn, no argument
can be advanced by the petitioner raising
any finger on this aspect that the tenure
holder might have surplus land if the
matter is examined in further details in the
light of the facts as are being pleaded by
him.

14. It is also settled that the
allottee cannot acquire any better right
than the right as exists with the State and
thus the State itself having no right to the
land as the same did not remain as surplus
the claim of the allottee will fall short as
the giver himself is not possessed to part
anything to the petitioner.

15. The decisions as has been
cited by the learned Counsel for the
petitioner although lays down that the
allottee has to be given opportunity of
hearing
before
cancellation
of
the
allotment, but in my opinion those
decisions have no application to the facts of
the present case. Those decisions can only
apply when there is proceedings for
cancellation of the allotment and some
impropriety and illegality in the allotment
proceedings are alleged, which can be
subject matter of enquiry and scrutiny in
that cancellation proceedings for which
certainly the allottee will have to be given
opportunity of hearing so that he can
demonstrate the completion of all the
formalities and validity of the allotment.
But so far the present case is concerned
neither the tenure holder has taken any
ground nor have challenged the validity of
the allotment on any ground which may be
available for cancellation of the allotment.
Here by virtue of the fact that by the
judgement of the Prescribed Authority no
land remained as surplus and thus as a
consequence
thereof
the
Prescribed
Authority has directed to restore the
correct position of the revenue records and
therefore, the decision as has been cited by
the learned Counsel for the petitioner will
not fit in the facts of the present case.

16. In fact the land having been
given to the allottee by the Collector, the
allottee cannot get any better title than the
Collector was possessed, as the petitioner
has stepped into the shoes of the Collector.
In view of the judgment of the Prescribed
Authority dated 22.5.86 the restoration of
the correct entry in the revenue record and
even restitution of the possession will be an
automatic follow-up to which the petitioner
can have no say in the matter as he has no
locus standi to intervene in the matter of
declaration of the land as surplus.

13. In Ram Bhajan's case (supra),
this Court has further held that "if order
has become final and it has not been
challenged by the State, the restoration of
9 All. Naimish Vallabh Vs. Addl. Commissioner Lucknow Division
541
possession after discharge of notice in the
revenue record is an automatic follow-up
to which allottee can have no say and they
have no locus-standi to intervenes in the
matter of declaration of the land as
surplus."

14.
In
view
of
aforesaid
proposition of law as held by this Court
and in view of Section 14 of the Act, it is
clear that unless and until proceeding
against tenure holder has become final, in
case, any allotment is made and if the
notice under Section 10 is discharged, the
tenure holder is entitled to possession. In
any event, if the respondent State during
pendency of proceeding on the basis of
order passed by prescribed authority, allot
the land to certain persons and handover
possession, as soon as the notice is
discharged the restoration of possession to
the tenure holder is automatic. The
allottees in that circumstances, will have no
right to say regarding the validity and
genuineness of the order passed in favour
of tenure holder. It is only State, who
comes in picture to challenge the order
passed, if any, in favour of tenure holder.
Admittedly, the order dated 2.6.1999 has
become final as it regards to the State.
State has not filed any writ petition
challenging the said order. Therefore, I am
of the opinion that in spite of fact that
petitioners were permitted to be impleaded
before the Appellate Authority and they
have been given opportunity to be heard
but in the facts and circumstances of the
case, as the appellate authority has already
discharged the notice vide its order dated
2.6.1999 and has held that no land of
respondent No. 2 is surplus, therefore,
consequence of that will be that respondent
No. 2 will be entitled to get possession of
surplus land held by prescribed authority
in his earlier order. Petitioners will have
no right to challenge the order passed by
Appellate Authority dated 2.6.1999. Only
the State can have a say regarding the
validity of the order dated 2.6.1999 passed
by Appellate Authority but admittedly, the
State has not filed any writ petition before
this Court, challenging the order passed by
appellate authority and that has become
final."

(ii) Ram Bhajan Vs. Chief
Revenue Officer/ Prescribed Authority,
Mirzapur and others [2001 (44) ALR
541]. Relevant paragraphs-13 and 14 are
being quoted below :-

"13. It is well settled that the
matter of declaration of the land as surplus
is between the State and the tenure holder
and nobody comes in between and thus
once the State has chosen not to take up the
matter to the higher forum, challenging the
judgment of the Prescribed Authority by
which notice for declaration of the land as
surplus itself was withdrawn, no argument
can be advanced by the petitioner raising
any finger on this aspect that the tenure
holder might have surplus land if the
matter is examined in further details in the
light of the facts as are being pleaded by
him.

14. It is also settled that the
allottee cannot acquire any better right
than the right as exists with the State and
thus the State itself having no right to the
land as the same did not remain as surplus
the claim of the allottee will fall short as
the giver himself is not possessed to part
anything to the petitioner."

15. Smt. Madhulika Yadav, Advocate
by means of impleadment application has
opposed the submission advanced by
learned counsel for the petitioner on the
542 INDIAN LAW REPORTS ALLAHABAD SERIES
ground that proposed opposite parties who
have filed application for impleadment
were allotted land from the surplus land in
the year 1990. The proposed respondents
are patta holders and poor landless
scheduled caste persons and possession was
handed over to them, who have been
continuously in possession of the same
since 1990 to 1997 and their names have
been recorded in revenue record (khatauni),
therefore, any order without impleadment
will be bad in the eyes of law.

16. After having heard the submission
advanced by learned counsel for the parties,
I perused the material on record as well as
the law report cited by learned counsel for
the petitioner.

17. Ms. Madhulika Yadav, Advocate
was heard in opposition without allowing
impleadment application. The rights of the
proposed respondents shall be subject to
decision passed in the writ petition.

18.
The
petitioner's
father
Shri
Digvijai Prasad was issued notice under
Section 10(2) of the U.P. Imposition of
Ceiling on Land Holdings Act, 1960 (as
amended in 1972) on 25.08.1974. He filed
objections stating therein that sale of 12.25
acres in favour of Smt. Nanhee Devi in
1970, duly mutated on 22.01.1971; she was
in separate possession since then. It was
also pleaded that separation had taken place
between the petitioner and Smt. Nanhee
Devi 15 years ago and since then, they are
living in two distinct villages and were not
living as husband and wife. Partition of
1971 between petitioner and his father by
order of Sub Divisional Officer dated
14.04.1971; land mutated in petitioner's
favour. Independent tenure holders: Smt.
Nanhee Devi, being a separated wife, was
an independent recorded tenure holder,
hence, her land could not be clubbed with
that
of
the
petitioner's
father.
The
unirrigated land and Usar land of village
Saidpur has been shown as irrigated land.

19. The objections filed by the father
of the petitioner were dismissed by the
prescribed authority holding that the
partition suit was pending as on 24.01.1971
and the petitioner was a minor at that time.
Sale deed in favour of Nanhee Devi was
before 24.01.1971 but separation was not
judicial.

20.
Consequently,
62.79
acres
(unirrigated) (equivalent to 48.16 irrigated
acres) was declared as surplus land. At
earlier point of time Appeal No. 466/1975,
had been partly allowed by the Ist
Additional District Judge, Sitapur, on
13.03.1976, whereby findings on some
issues were affirmed but issue Nos.3, 4, 5
were remitted to the prescribed authority
for fresh findings. Shri Digvijai Prasad had
also preferred Writ Petition No. 1086/1976,
which was dismissed vide judgment and
order dated 30.8.1978.

21. After the death of Shri Digvijai
Prasad, the present petitioner was substituted
and carried on the proceedings. His statutory
appeal, registered as Appeal No. 86/89-90
and the same was transferred to the court of
Additional
Commissioner-I,
Lucknow
Division, Lucknow for disposal. In pursuance
to the judgment and order dated 13.3.1976,
the prescribed authority was required to give
findings on the issue Nos.3, 4 and 5 and
return the same to the appellate court. The
prescribed authority did not decide these
issues in the light of the observations made
by the appellate court.

22. The ceiling proceeding under
Section 10(2) of The U.P. Imposition of
9 All. Naimish Vallabh Vs. Addl. Commissioner Lucknow Division
543
Ceiling on Land Holdings Act, 1960 was
initiated against Digvijay Prasad, the father
of the petitioner and he filed the objection
and the prescribed authority framed six
issues
and
ultimately
dismissed
the
objection of Digvijay Prasad on 31.10.1975
after taking the evidence and declared
48.16 acre surplus land against which
Digvijay Prasad filed appeal No.466 of
1975 and Additional District and Sessions
Judge, Sitapur partly allowed the appeal on
13.03.1976 and confirmed the finding on
issue Nos.1, 2 and 6 and the case was
remanded back to the prescribed authority
to decide the issued Nos.3, 4, 5 as per
provisions of Section 4-A of Ceiling Act
and further directed to decide issued
Nos.3,4, 5 within a month and the finding
recorded by the prescribed authority be
returned back so that the appeal may be
finally decided.

23. The prescribed authority issued
notice to Digvijay Prasad and he appeared
in the court on 26.05.1976 and given
statement that he do not want to give
evidence and he has filed writ petition
before
Hon'ble
High
Court
but
no
restrained order was produced and State
was
directed
to
produce
evidence.
Meantime, Digvijay Prasad again moved an
application on 02.07.1976 and prayed to
stay the present proceeding till the decision
of writ petition but as per order dated
26.04.1976 the possession of tenure holder
shall not be disturbed and no restrained
order was passed, therefore, the prescribed
authority decided issue Nos.3, 4, and 5 on
12.07.1976
(Annexure
SCA1
to
supplementary
counter
affidavit)
and
prescribed authority sent the file back to the
District Judge and the District Judge,
Sitapur fixed the date 20.08.1976 for filing
the objection against the finding recorded
on issue Nos.3, 4 and 5 but Digvijay Prasad
neither appeared nor filed any objection
against the findings and he has also not
given any fresh proposal to declare the
surplus land and the District Judge sent file
back to the prescribed authority on
20.08.1976
(Annexure
SCA
2
to
supplementary
counter
affidavit)
for
sending fresh proposals for declaration of
surplus land as per order dated 13.03.1976
within 15 days and fixed the date on
15.09.1976 for further order and the
prescribed authority sent the proposal on
30.08.1976 to District Judge, Sitapur and
the District Judge finally decided Civil
Appeal No.466 of 1975 vide order dated
11.10.1976 which was never challenged by
the petitioner or his father Digvijay Prasad
and the order dated 11.10.1976 become
final.

24. Writ Petition No.1086 of 1976
Digvijay Prasad Vs. State of U.P. and
Another was decided on 04.10.1989 but
father of the petitioner suppressed about the
order dated 11.10.1976 and the State taken
possession over surplus land under Section
14 of U.P. Imposition of Ceiling on Land
Holdings Act, 1960 and allotted the surplus
land to several landless persons and the
said allotment has also became final.

25. The petitioner filed an application
to the prescribed authority on 26.07.1990
(Annexure
SCA
5
to
supplementary
counter affidavit) after a lapse of 14 years
and prayed that the allotment of surplus
land should be stopped and further stop to
take possession from petitioner and second
application was filed on 26.07.1990 in
which prayer was made to set aside ex
parte order dated 12.07.1976 and decide the
case after taking evidence on issues 3, 4 &
5 and the petitioner further filed an
application on 09.08.1990 and given choice
of the land suppressing the order dated
544 INDIAN LAW REPORTS ALLAHABAD SERIES
11.10.1976 passed by District Judge,
Sitapur which become final due to non
challenge of the same before any forum.

26. The State has filed the order dated
12.07.1976, 20.08.1976, 30.08.1976 and
11.01.1976 before the prescribed authority
and the prescribed authority rejected both
the applications by a reasoned order dated
16.08.1990 without mentioning aforesaid
orders and the appeal filed by the petitioner
was also dismissed on 31.07.1996 by the
Additional Commissioner, Lucknow as not
maintainable.

27.
The
appellate
authority
has
dismissed the appeal No.86/89-90 on the
ground that while allowing the appeal
partly, the Ist Additional District Judge,
Sitapur on 13.03.1976 remanded the matter
back to the prescribed authority keeping the
appeal pending. The prescribed authority
after deciding the issue Nos.3, 4 and 5
listed it in the pending appeal which was
finally decided the appeal on 11.10.1976.
The order passed in the appeal finalized
was not challenged by the petitioner in writ
petition, or in revision or before any forum,
therefore, the judgment and order passed in
the appeal became final.

28. The appeal No.86/89-90 was filed
against the order passed by the prescribed
authority for deciding issue Nos.3, 4 and 5
before
the
Additional
Commissioner,
Lucknow, who dismissed the appeal as not
maintainable on the ground that the appeal
has already been decided in which the order
of prescribed authority was affirmed,
therefore, the appeal No.86/89-90 was
dismissed on 31.07.1996. The order passed
by the appellate court does not suffer from
any infirmity or illegality in view of the
fact that pending appeal against the
judgment and order dated 13.03.1976 the
matter
was
remanded
back
to
the
prescribed authority to decide issue Nos.3,
4 & 5 afresh keeping the appeal pending.
Thereafter, the matter was decided by the
prescribed authority and was placed in the
pending appeal which has been decided by
the appellate court which has not been
assailed at any forum, therefore, the
judgment and order passed in the appeal
attained finality.

29. The appellate authority has not
exercised jurisdiction vested in it due to
reason that earlier appeal which was kept
pending has been decided and the next
appeal No.86/89-90 was not maintainable.
The finding recorded by the prescribed
authority on the issue Nos.3, 4 & 5 was
duly submitted before the appellate court
which was accepted and the appeal was
dismissed vide order dated 11.10.1976.

30. Subsequent appeal filed against the
order of prescribed authority passed in
deciding the issue Nos.3, 4 & 5 and appeal
No.86/89-90 the finding recorded by the
appellate authority does not suffer from any
infirmity or illegality as was held that the
appeal is not maintainable. The order of the
prescribed authority merged into appellate
court order passed at earlier point of time,
therefore, the appeal No.86/89-90 was not
maintainable.

31.
In
case
the
petitioner
was
aggrieved by the order passed by the
appellate court at earlier point of time
accepting the order of prescribed authority
the petitioner was aggrieved, he would
have filed the writ petition against that
order. There was no occasion to file fresh
appeal for the same purpose. During
pendency of appeal remanding the matter
to the prescribed authority by recording
finding of issue Nos.3, 4, 5 the prescribed
9 All. Kumar Vikas Vs. State of U.P.
545
authority decided the issue and placed it in
the
pending
appeal,
which
was
subsequently dismissed and the same was
not assailed at any forum, therefore, the
order passed in the appeal attained finality.

32. In regard to order passed in the
appeal no.86/89-90 vide judgment and
order
dated
31.07.1996
the
review
application filed against the said order
has already been decided but the date of
order was not pointed out and the same
has not been assailed in the writ petition.
The judgments relied upon by learned
counsel for the petitioner which have
been noticed in the present judgment are
not
applicable
to
the
facts
and
circumstances of the case. The appeal has
rightly
been
dismissed
as
not
maintainable.

33. In view of totality of facts and
circumstances of the case, the present writ
petition filed against order of prescribed
authority and passed in the subsequent
appeal No.86/89-90 do not suffer from any
infirmity or illegality.

34. The writ petition lacks merit and is
hereby dismissed.

35. No order as to costs.
----------
(2025) 9 ILRA 545
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 10.09.2025

BEFORE

THE HON'BLE SHREE PRAKASH SINGH, J.

Application U/S 528 BNSS No. 908 of 2025

Kumar Vikas ...Applicant
Versus
State of U.P. ...Opposite Party
Counsel for the Applicant:
Pranjal
Jain,
Nitin
Mathur,
Purnendu
Chakravarty

Counsel for the Opposite Parties:
G.A.

Issue for consideration
Preliminary
Objection
as
to
maintainability of Application u/s 528
BNSS-

Headnotes
Default Bail-Default bail application filedrejected-impugned- on account of non-filing of
complaint within ninety days-from the date of
arrest-allegation against applicant being an
employee of Ordnance Factory-was sharing
confidential information and documents through
WhatsApp to an agent of Pakistan-preliminary
objection-Section 21(4) of the Act 2008-appeal
shall lie to the High Court against an order of
the Special Court granting or refusing bailnotwithstanding contained in Section 378 (3)
Cr.P.C.- no otherwise definition can be given
against the intent of the legislature. Application
not maintainable-dismissed.
Held, apparent from the provision of Section
21(4) of the Act 2008 that an appeal shall lie to
the High Court against an order of the Special
Court granting or refusing bail, notwithstanding
contained in Sub Section (3) of Section 378 of
the Cr.P.C. This provision is overt in its mandate
and while applying this provision in the present
case, it is apparent that this does not speak
regarding any difference of any kind of refusing
or granting bail, meaning thereby that if the
Special Court (NIA) grants or refuses the bail,
the same is amenable to the provisions of the
appeal, prescribed under Section 21 of the Act
2008 and, therefore, in presence of the obvious
provisions, no otherwise definition can be given
against the intent of the legislature. (E-9)

Case Law Cited
1. Harendra Vs. State of U.P. and another
reported in 2020 SCC OnLine All 850
2. Madhu Limaye Vs. the State of Maharashtra,
reported in NA528 No. 908 of 2025 4 (1977) 4
SCC 551
3. Amar Nath and others Vs. State of Haryana
and another, reported in (1977) 4 SCC 137