# Nishar Ahmad Khan & Ors v. State of U.P. & Ors

- **Citation:** (2026) 4 ILRA 1525
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2026-04-01
- **Case number:** Writ C No. 3000096 of 2002
- **Bench:** Irshad Ali
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nishar-ahmad-khan-ors-v-state-of-u-p-ors-54679
- **Pages:** 9

## Text

4 All. Nishar Ahmad Khan & Ors. Vs. State of U.P. & Ors.
1525
to the Prescribed Authority to verify and modify its own order, which is an impermissible
course and amounts to abdication of appellate jurisdiction.

25. The findings recorded by the authorities below are thus vitiated on the ground of
absence
of
cogent
evidence,
misapplication
of
burden
of
proof,
reliance
on
inadmissible/insufficient material, and failure to exercise jurisdiction in accordance with law.
Consequently, the impugned orders cannot be said to be legally sustainable and are liable to be set
aside.

26. Considering in totalities of facts and circumstances of the case, this writ petition is
allowed. Order dated 28.12.1998 passed by opposite party no.2 in Appeal No. 335/93-94 and order
dated 21.4.1994 passed by opposite party no.3, as contained in Annexure nos.1 and 2 respectively
to this writ petition are hereby set aside.

27. Accordingly, this writ petition succeeds and is allowed.

28. No order as to costs.
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(2026) 4 ILRA 1525
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 01.04.2026

BEFORE

THE HON'BLE IRSHAD ALI, J.

Writ C No. 3000096 of 2002

Nishar Ahmad Khan & Ors. ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

ISSUE FOR CONSIDERATION
Whether the Prescribed Authority and appellate authority erred in declaring 13.657 acres irrigated land
surplus despite High Court's remand order dated 12.01.1984, oral family settlement claim, and substitution of
heirs.

Whether the impugned orders suffer from violation of natural justice and non-compliance with binding
directions.
HEADNOTES
Civil Law - Constitution of India - Article 226, 227 - U.P. Imposition of Ceiling on Land Holdings
Act, 1961 - Section 10(2): - Writ Petition under Article 226 - seeking quashing of order passed by
prescribed authority under the U.P. Imposition of Ceiling on Land Holdings Act, and order of appellate order -
whereby 13.657 acres irrigated land was declared surplus - petitioners pleaded that the land was ancestral,
subject to oral family settlement, heirs were not duly substituted, and the Prescribed Authority failed to
comply with the High Court's remand order, directing recalculation - respondents contended that proper
notices were issued, heirs substituted, and recalculation done strictly in compliance with law - Court finds that,
1526 INDIAN LAW REPORTS ALLAHABAD SERIES
substitution application was ignored, remand directions were not followed, and orders were passed without
judicial application of mind - show violation of natural justice and disregard of binding precedents - held, both
impugned orders are unsustainable, quashed - writ petition allowed - matter remanded for recalculation in
terms of High Court's earlier directions - direction issued accordingly.
(Para - 22, 23, 24, 25, 26, 27)
WP Allowed. (E-11)

CASE LAW CITED
Wadood Ahmad v. ADJ, 2020 SCC OnLine All 1930
Jasraj Inder Singh v. Hemraj Multanchand, (1977) 2 SCC 155
LIST OF ACTS
Constitution of India - U.P. Imposition of Ceiling on Land Holdings Act, 1960

LIST OF KEYWORDS
Ceiling proceedings, surplus land, oral family settlement, substitution of heirs, remand order, natural justice,
recalculation of land, supervisory jurisdiction
CASE ARISING FROM
Orders of Prescribed Authority dated 31.03.2001 and Commissioner dated 10.09.2002 affirming surplus land
declaration under Ceiling Act.

APPEARANCE OF PARTIES
Counsel for Appellant(s): Shri Mohiuddin Khan,
Counsel for Respondent(s): Shri S.G. Singh, Standing Counsel - Shri Dinesh Chandra for allottee.

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

1. Heard Shri Mohiuddin Khan, learned counsel for the petitioners, Shri S.G. Singh, learned
Standing Counsel for the respondents-State and Shri Dinesh Chandra, learned counsel for the
subsequent allottee.

2. The present writ petition has been filed challenging the judgment and order dated
10.09.2002 passed by the Commissioner (opposite party no.2) whereby the appeal preferred by the
petitioners has been dismissed and the order dated 31.03.2001 passed by the Prescribed Authority
under the provisions of the U.P. Imposition of Ceiling on Land Holdings Act, 1960 has been
affirmed.

3. The factual matrix of the case is that on 08.07.1974 a notice under Section 10(2) of UP
Imposition of Ceiling on Land Holding Act was issued in which area held by the petitioner's father
and grand-father of ( petitioners no. 9 to 12) was shown 23.056 acres land un-irrigated equivalent
to 13.697 acres irrigated land was proposed to be declared surplus and an area 29.400 acres
irrigated land was held within the ceiling limits.

 The petitioner's father and grand father of the petitioner no. 9 to 12 filed an objection with
the allegation that the entire land is unirrigated ancestral land and 5 major sons were in existence on
the date of vesting and thus they are the co-tenure holder along-with Gulam Mohammad Khan.
4 All. Nishar Ahmad Khan & Ors. Vs. State of U.P. & Ors.
1527
 The Prescribed Authority (Opposite Party No. 3) dismissed the objections vide order
dated 26.12.1974. Against the said order petitioner preferred an appeal in the Court of District
Judge, Bahraich ( Rent Appeal No. 32 of 1975) which was allowed and accordingly the order dated
26.12.1974 was set aside vide order dated 05.04.1975.

 In a review application filed by OP No.1 the order dated 05.04.1975 was dismissed and
the order dated 26.12.1974 was upheld vide order dated 18.09.1980.

 The petitioner filed a writ petition 3026/80 in this Hon'ble Court which was allowed vide
order dated 12.01.1984 with following direction : " The writ petition is allowed and the order
passed by the Distt. Judge dated 5.4.1975 Annexure Ho. 5) in review application is quashed and is
directed to recalculate the land in accordance with laws"

 The matter was remanded back to the Prescribed Authority to recalculate the land of the
petitioner in the light of order dt. 12.01.1984. The Prescribed Authority vide order dated
31.03.2001 declared 13.657 acres irrigated land equivalent to 20.485 acres unirrigated land as
surplus. Against the order dated 31.03.2001 petitioners filed an appeal in the court of
Commissioner, Devi Patan (OP No. 2) which was dismissed vide order dated 10.09.2002.

4. Learned counsel for the petitioners submits that the appellate Court has arbitrarily and
illegally passed the judgment and order dated 10.9.2002 upholding the order dated 31.3.2001
passed by the opposite party no. 3 has been passed without giving opportunity of hearing to the
petitioners and without applying its judicial mind at the time of passing the impugned order and
without considering the pleas and arguments raised by the petitioners.

5. Learned counsel for the petitioners next submits that opposite party no. 3 has committed
manifest error of law in not deciding the application for substitution of the legal heirs of late Abdul
Wahab Khan and without substituting the sons of late Abdul Wahab and grandsons of Late Gulam
Mohamaad Khan passed the impugned order dated 10.9.2002.

6. Learned counsel for the petitioner next submits that the Prescribed Authority vide order
dated 26.12.1974 also rejected the plea of mutual partition cum family settlement on the ground
that no documentary evidence to the said effect has been led whereas it is well settled principle that
mutual partition and family settlement can be orally done and there is no necessity of reducing the
same in writing.

7. Learned counsel for the petitioner submits that the Prescribed Authority passed the order
dated 31.03.2001 without considering the facts of the order dated 12.1.1964 passed by this Hon'ble
Court wherein it was held that the District Judge Bahraich allowed the review application under
mistaken belief that the original tenure holder had four major sons and three sons are entitled to 6
hectare of land and as such even if the original tenure holder had 4 sons an area of 5.160 acre land
was not reduced, the order passed by the District Judge in review application order dated 18.9.1980
thus deserves to be quashed, but the Prescribed Authority Ceiling Bahraich did not follow the
remand order of the Additional Commissioner Faizabad nor the order dated 12.1.1984 passed by
1528 INDIAN LAW REPORTS ALLAHABAD SERIES
this Hon'ble Court and without deducting the area of land and declared 13.657 acres irrigated land
equivalent to 20.485 acres unirrigated land acres as surplus.

8. Learned counsel for the petitioner next submits that according to the petitioner, out of
total surplus land, 0.461 acres has been shown as grove, 0.410 acres of land has been kept out of
ambit of ceiling and in remaining land petitioners are entitled to retain 7.30 hectares in terms of
irrigated land plus six hectare for 4 major sons and other family members and thus remains 8.09
acres land only and after excluding 5,160 only, 2.98 acres land allegedly remains surplus.

9. In support of his submissions, learned counsel has relied upon the following judgments:

 (i) Wadood Ahmad v. ADJ, 2020 SCC OnLine All 1930

 (ii) Jasraj Inder Singh v. Hemraj Multanchand, (1977) 2 SCC 155

10. On the other hand, learned counsel for the respondents submits that the orders passed
by the authorities under the U.P. Imposition of Ceiling on Land Holdings Act, 1960 are legal, valid
and passed in accordance with law.

11. Learned counsel for the respondents next submits that a notice under Section 10(2) of
the Act was issued on 08.07.1974 to the tenure holder Ghulam Mohammad Khan, indicating that he
possessed 43.057 acres of land (in terms of irrigated land). After calculating the permissible ceiling
limit of the tenure holder and his family members 23.056 acres (unirrigated equivalent) were
proposed to be declared surplus land. Accordingly, the Prescribed Authority/Additional District
Magistrate (Finance and Revenue), Bahraich passed an order dated 02.12.1974 declaring the said
land as surplus.

12. Learned counsel for the respondents next submits that the tenure holder filed Appeal
No. 32/75 before the District Judge, Bahraich, which was dismissed on 18.09.1980. Thereafter, a
writ petition was filed before the High Court, and by order dated 12.01.1984, the High Court
directed the authorities to recalculate the land in accordance with the rules. In compliance with the
High Courts direction and the order dated 22.04.1998 of the appellate authority, the land was
recalculated. After recalculation, the total holding of the tenure holder was found to be 43.057 acres
(irrigated equivalent). After deducting the permissible ceiling limit of 29.400 acres, 13.657 acres of
irrigated land (equivalent to 20.485 acres unirrigated) was found to be surplus.

13. Learned counsel for the respondents next submits that after the death of the tenure
holder, notices were duly served upon his legal representatives, who were substituted in the
proceedings on the basis of the Tehsildars inquiry report dated 23.04.1999. The legal
representatives appeared on 26.09.2000 and 30.09.2000, but subsequently failed to appear, due to
which ex-parte proceedings were conducted.

14. Learned counsel for the respondents next submits that the Prescribed Authority passed
an order dated 31.03.2001 declaring 13.657 acres of irrigated land (20.485 acres unirrigated) of
Gata No. 301M as surplus. Against this order, the legal representatives filed Appeal No. 21/2001
4 All. Nishar Ahmad Khan & Ors. Vs. State of U.P. & Ors.
1529
(Nisar Ahmad Khan & Others vs State), which was dismissed on 10.09.2002, and the order of the
Prescribed Authority was affirmed.

15. Learned counsel for the respondents lastly submits that the State has contended that all
proceedings were conducted after issuing proper notices, providing opportunity of hearing, and
strictly in compliance with the directions of the High Court and the appellate authority. Therefore,
the grounds taken in the writ petition are not tenable in law, and the writ petition is liable to be
dismissed.

16. Having heard the rival submissions of learned counsel for the parties, I have perused
the material available on record.

17. To resolve the controversy involved in the present writ petition, operative portion of
judgment relied upon by learned counsel for the petitioner is extracted herein below:

 (i) Wadood Ahmad (supra):

 "17. On the issue, learned counsel for respondent No. 2 further relied upon a judgment
rendered in the case of Shamshad Ahmad v. Tilak Raj Bajaj; (2008) 9 SCC 1 : (AIR 2008 Supp SC
526):

 "38. Though powers of a High Court under Articles 226 and 227 are very wide and
extensive over all courts and Tribunals throughout the territories in relation to which it exercises
jurisdiction, such powers must be exercised within the limits of law. The power is supervisory in
nature. The High Court does not act as a court of appeal or a court of error. It can neither review
nor reappreciate, nor reweigh the evidence upon which determination of a subordinate court or
inferior Tribunal purports to be based or to correct errors of fact or even of law and to substitute
its own decision for that of the inferior court or Tribunal. The powers are required to be exercised
most sparingly and only in appropriate cases in order to keep the subordinate courts and inferior
Tribunals within the limits of law.

 18. Learned counsel for respondent No. 2 relied upon aforesaid judgments to show that
the findings recorded by the trial court on erroneous impression of legal position could be
interfered with and the Revisional court can re-assess and record its findings. The case of Smt.
Nattho (supra) relates to the revisional jurisdiction under Section 115 of the CPC, likewise, in the
case of Ram Swaroop (supra), the provisions of Section 2(2) of Act No. 13 of 1972 were considered
as well as in Hemlata Tripathi and Bhoopal Singh (supra), it was held that the finding regarding
non-applicability of the Act are findings of fact. The judgment of the Apex Court in Shamshad
Ahmad (supra) case relates to the bona fide requirement of the landlord.

 19. On a careful consideration of the entire facts and the evidence on record as well as
the case laws, it is now evident that this court after setting aside the findings recorded by the
respondent No. 1 vide judgment dated 06.11.2006 regarding the question of rate of rent and
applicability of U.P. Act No. 13 of 1972 and the entitlement of the petitioner for the benefit under
1530 INDIAN LAW REPORTS ALLAHABAD SERIES
Section 20(4) of the Act, quashed the same and remanded the matter to the respondent No. 1 to
decide the revision in accordance with the directions contained therein within two months.

 20. The respondent No. 1 even without complying the order of remand passed by this
court earlier, had again endorsed the same findings which in view of the law relied upon by
counsel for the petitioner are beyond scope of the powers conferred on him under Section 25 of the
Act"

 (ii) Jasraj Inder Singh (supra):

 "12. The remand order was undoubtedly binding on the lower court and had directed a
limited enquiry and passing of a decree in favour of the party in whose favour the balance will be
found due. The High Court held that after the remand the learned trial Judge had no jurisdiction
to look into the Bombay accounts as a whole and on account of the misapprehension of the
observations of the remand order an illegal decree had been passed in favour of the plaintiff.

 13. What was the misapprehension about? While directing a remand, the High Court
ordered that Issue 6 should be decided by the trial court and this issue has been set out earlier by
us. Naturally, the trial court took the view that the High Court, having ordered an adjudication of
Issue 6, vested it with the jurisdiction to enquire into the Bombay accounts in toto and pass the
decree that we have already indicated viz. a deduction of the surplus due to the defendant from the
Bombay accounts from the amount due to the plaintiff from the defendant according to the
Khamgaon accounts. The arithmetic is not in dispute and, indeed, while both the counsel have
taken us through the evidence in the case we are satisfied that if both the Khamgaon and the
Bombay accounts had to be gone into the decree passed was correct both regarding the quantum
and on the issue of limitation. This we affirm because Shri Phadke had feebly pressed before us
that in any case his client should be given a fresh opportunity to make out his case regarding the
various entries in the Bombay khata. We are not satisfied that the defendant has not had a full say
and we are therefore disinclined to accede to this request.

 14. The surviving question before us is whether it was in order for the trial court to have
investigated the accounts in the two shops together as if they were transactions between the same
two persons or whether the remand order of the High Court at the first round had fettered the trial
court's hands in doing justice in this comprehensive way. The suit is for a sum due on accounts.
The parties are the same. There are two shops belonging to the same owner. The return of the
income from the two shops, for income tax purposes, is a consolidated one. In short, there was only
one person who owned two shops and it is wrong to construe the situation as if there were two
juristic entities or personae. Secondly, the defendant, who dealt with the plaintiff in the two shops,
was the same person. He had no dual characters to play. The dealings were either in one or in the
other shop. They were business dealings between two businessmen, during the same period, and
even inter-related, to such an extent that sometimes advances were made from one shop and
realisations were made in the other shop. In short an artificial dissection of these transactions
could not square up with the reality of the situation. Shri Phadke urged that one contract was one
transaction and a set of contracts need not be necessarily brought up in the same action between
the same parties. We consider that the true nature of the action here is a suit on accounts for the
4 All. Nishar Ahmad Khan & Ors. Vs. State of U.P. & Ors.
1531
sum due on striking a balance. That itself is the cause of action. Such a suit is not unfamiliar and
such a cause of action may be made up of various minor transactions. Viewed at the micro level
each may be a single contract. But viewed at the micro level as a suit on accounts, it is a single
cause of action. If the present action is one on accounts and if the various entries in the two shops
at Khamgaon and Bombay involve transfusion of funds and goods, there is no reason why we
should not accept as sound the approach made by the trial court that the entirety of accounts in the
two shops should be viewed as a composite one. It reduces litigation; it promotes the final financial
settlement as between the parties; it has the stamp of reality. Otherwise it would be an odd
distortion to grant a decree for the plaintiff for, say Rs 10,000 on the strength of the Khamgaon
accounts while he owes the defendant Rs 50,000 according to the Bombay accounts. Order 8 Rule
6 CPC deals with a specific situation and does not prevent the court, where the facts call for wider
relief, from looking into the accounts in both places to do ultimate justice between the parties.
Procedure is the handmaid and not the mistress of justice and, in this spirit, the trial court's
adjudication cannot be faulted.

 15. Be that as it may, in an appeal against the High Court's finding, the Supreme Court is
not bound by what the High Court might have held in its remand order. It is true that a subordinate
court is bound by the direction of the High Court. It is equally true that the same High Court,
hearing the matter on a second occasion or any other court of coordinate authority hearing the
matter cannot discard the earlier holding, but a finding in a remand order cannot bind a higher
court when it comes up in appeal before it. This is the correct view of the law, although Shri
Phadke controverted it, without reliance on any authority. Nor did Shri S.T. Desai, who asserted
this proposition, which we regard as correct, cite any precedent of this Court in support. However,
it transpires that in Lonankutty [Lonankutty v. Thomman, (1976) 3 SCC 528] this proposition has
been affirmed. Viewed simplistically, the remand order by the High Court is a finding in an
intermediate stage of the same litigation. When it came to the trial court and escalated to the High
Court, it remained the same litigation. The appeal before the Supreme Court is from the suit as a
whole and, therefore, the entire subject-matter is available for adjudication before us. If, on any
other principle of finality statutorily conferred or on account of res judicata attracted by a decision
in an allied litigation the matter is concluded, we too are bound in the Supreme Court. Otherwise,
the whole lis for the first time comes to this Court and the High Court's finding at an intermediate
stage does not prevent examination of the position of law by this Court. Intermediate stages of the
litigation and orders passed at those stages have a provisional finality. After discussing various
aspects of the matter, Chandrachud, J. speaking for the Court in Lonankutty [Lonankutty v.
Thomman, (1976) 3 SCC 528] observed : (scc p. 535, para 23)

 "The circumstance that the remaining judgment of the High Court was not appealed
against, assuming that an appeal lay therefrom, cannot preclude the appellant from challenging the
correctness of the view taken by the High Court in that judgment."

18. Perusal of the above-extracted judgments reveals that though the powers of a High
Court under Article 226 and 227 are very wide and extensive over all courts and Tribunals
throughout the territories in relation to which it exercises jurisdiction, such powers must be
exercised within the limits of law. The power is supervisory in nature. The High Court does not act
a court of appeal or a court of error. It can neither review nor reappreciate, nor reweigh the
1532 INDIAN LAW REPORTS ALLAHABAD SERIES
evidence upon which determination of a subordinate court or inferior Tribunal purports to be based
or to correct errors of fact or even of law and to substitute its own decision for that of the inferior
court or Tribunal. The powers are required to be exercised most sparingly and only in appropriate
cases in order to keep the subordinate courts and inferior Tribunals within the limits of law.

 It also reveals that the remand order was undoubtedly binding on the lower court and had
directed a limited enquiry and passing of a decree in favour of the party in whose favour the
balace will be found due. It was held that after the remand the learned trial Judge had no
jurisdiction to look into the matter as a whole.

19. Perusal of the record shows that an application for substitution of the legal heirs of late
Abdul Wahab Khan had been filed. However, the Prescribed Authority proceeded to decide the
matter without first determining the substitution application and without bringing the legal heirs on
record. It is a settled principle that proceedings conducted without impleading the necessary parties,
particularly legal heirs of a deceased party whose rights are directly affected, cannot be sustained in
law. In this view of the matter, the order impugned is vitiates in law and has been passed without
applying its judicial.

20. The orders impugned also reveal that earlier proceedings in the matter had culminated
in a remand by the superior authorities. Once a remand order had been passed with specific
directions, it was incumbent upon the Prescribed Authority to strictly adhere to those directions.
The law in this regard has been clearly laid down by the Hon'ble Supreme Court in Jasraj Inder
Singh v. Hemraj Multanchand (supra) where it has been held that the subordinate Court is bound
by the remand order and cannot travel beyond its scope.

21. Similarly, this Court in the case of Wadood Ahmad (supra) reiterated that failure to
comply with the directions issued in a remand order renders the subsequent order unsustainable.
The judgments relied upon by the learned counsel for the petitioners are fully applicable to the facts
and circumstances of the case

In the present case, it appears that the Prescribed Authority did not properly understood the
directions issued in earlier proceedings nor examined the question regarding deduction of land as
indicated by the superior authorities.

22. The Prescribed Authority, without considering the observation that Hon'ble Court
declared 13.6547 acres irrigated land equivalent to 20.485 acres of unirrigated land as well as the
observation that the initial 5.160 acres of land declared as surplus has to be reduced vide order
dated 31.03.2001, passed the impugned order without application of judicial mind and is contrary
to the observation made by the Hon'ble Court.

23. The Appellate Authority while affirming the order of the Prescribed Authority has also
failed to examine these aspects and passed the impugned order in a cursory manner without taking
into account the aspects narrated in the aforesaid paragraphs.
4 All. Javed Khan Vs. State of U.P. & Ors.
1533
24. Both the Courts-Below have failed to re-calculate the land surplus in accordance with
direction issued by this Hon'ble Court and hence not duly complied with the remand order, hence
both the orders are liable to be set aside.

25. It is very strange that specific direction issued by the Hon'ble High Court has not been
taken into account and ignored while passing the orders impugned by the Courts-Below. It is duty
of the Courts Below that while passing any order by the Courts-Below, remand order passed by the
Hon'ble High Court / Superior Authority must be taken into account and pass order in accordance
with the direction issued by the Superior Authority.

26. Considering in totalities of facts and circumstances of the case, this Court is of the
opinion that both the Courts-Below have passed the orders impugned without complying with the
remand order of this Hon'ble Court dated 12.01.1984 in which a direction was specifically made to
recalculate the land of the petitioners.

27. Accordingly, this writ petition succeeds and is allowed. Order dated 10.09.2002 passed
by the Commissioner (opposite party no.2) and the order dated 31.03.2001 passed by the Prescribed
Authority are quashed.
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(2026) 4 ILRA 1533
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.04.2026

BEFORE

THE HON'BLE ARUN BHANSALI, C.J.
THE HON'BLE KSHITIJ SHAILENDRA, J.

Special Appeal No. 1632 of 2013
Alongwith
Special Appeal No. 1634 of 2013
Alongwith
Special Appeal No. 388 of 2014

Javed Khan ...Appellant
Versus
State of U.P. & Ors. ...Respondents

Issue for Consideration
(1) Effect of not holding departmental enquiry before terminating the appointment, which was obtained by
using forged certificate.

Headnotes
(A) Service law - Punishment - Termination - Appointment on the post of Excise Constable -
Charge of using forged documents of educational qualification was leveled - Certificate of
'Adhikari Pariksha', not equivalent to High School Examination was used - Plea of not serving
the copy of document, relied upon in the impugned order, was taken - Permissibility - Writ