# Om Prakash Singh v. State of U.P. & Ors

- **Citation:** (2024) 4 ILRA 1568
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-04-22
- **Case number:** Writ -C No. 3000010 of 1996
- **Bench:** Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/om-prakash-singh-v-state-of-u-p-ors-51748
- **Pages:** 9

## Headnote

Civil Law - U.P. Imposition Of Ceiling On
Land Holdings Act,1972 - Section 10 (2) -
Matter pertains to validity of order dated
16.02.1993, passed by the Chief Revenue
Officer, District Sultanpur in Case No.74 of
1985, under Section 10 (2) of U.P. Imposition of
Ceiling on Land Holdings Act
Prescribed Authority has been given the
discretion to accept the choice indicated by the
tenure-holder as far as possible-land was not in
physical possession of the petitioner and it was
not available to be allotted to any other personpowers of the Appellate Authority are coextensive with the original authority-no illegality
in the impugned orders.

Writ Petition dismissed. (E-9)

List of Cases cited:

## Text

1568 INDIAN LAW REPORTS ALLAHABAD SERIES
15.6.2022, and has held that he has no
jurisdiction. The order dated 15.6.2022
was, accordingly, set aside. In the
circumstances, the order passed by the
respondent No. 2 is justified and is upheld.

15. With regard to the argument
that no opportunity of hearing was
afforded by the revisional authority while
passing the impugned order, the petitioner
had to demonstrate that any real prejudice
has been caused to him by the order
impugned. As noted above, the revisional
authority has dealt with the aspect of only
the jurisdiction of the respondent No. 3 to
pass the order dated 15.6.2022. The
petitioner has not been able to demonstrate
before this Court that the Secretary had
jurisdiction to decide the dispute of grant
of license to the partnership firm, as was
sought to be done by the order dated
15.6.2022. Under the circumstances, it is
held that no prejudice was caused to the
petitioner by not affording him any
opportunity of hearing.

16. Therefore, on the admitted
and undisputed facts, given the admission
made in the short counter affidavit, only
one conclusion is possible that is that
order of the secretary dated 15.6.2022
cannot be sustained. No other conclusion
is possible. Further, it is important to note
that interference in the matter, that is to
say, quashing of the order passed in
revision by the Director, respondent No.2,
would result in revival of the order dated
15.6.2022 which is ex-facie without
jurisdiction. Under the circumstances the
impugned order requires no interference.
[Ref: Aligarh Muslim University and others
Vs. Mansoor Ali Khan (2000) 7 SCC 529]

17. In view of the reasons
afforded, interference in the matter is
declined and this petition is, accordingly,
dismissed.
----------
(2024) 4 ILRA 1568
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 22.04.2024

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Writ -C No. 3000010 of 1996

Om Prakash Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
S.P. Singh, Ajay Pratap; Singh, Ashish Kumar
Pandey, M.E. Khan, Rajeiu Kumar Tripathi

Counsel for the Respondents:
C.S.C., Bal Gangadhar Tripathi, R.P. Singh,
Satyendra Pratap

Civil Law - U.P. Imposition Of Ceiling On
Land Holdings Act,1972 - Section 10 (2) -
Matter pertains to validity of order dated
16.02.1993, passed by the Chief Revenue
Officer, District Sultanpur in Case No.74 of
1985, under Section 10 (2) of U.P. Imposition of
Ceiling on Land Holdings Act
Prescribed Authority has been given the
discretion to accept the choice indicated by the
tenure-holder as far as possible-land was not in
physical possession of the petitioner and it was
not available to be allotted to any other personpowers of the Appellate Authority are coextensive with the original authority-no illegality
in the impugned orders.

Writ Petition dismissed. (E-9)

List of Cases cited:

1. Hareshwar Dayal Seth versus II Additional
District Judge and others: 1982 All C J 207

2. Ram Sagar versus Civil Judge, Bahraich and
others: 1984 SCC OnLine All 404
4 All. Om Prakash Singh Vs. State of U.P. & Ors.
1569
(Delivered by Hon'ble Subhash Vidyarthi J.)

1. Heard Sri Rajeiu Kumar
Tripathi Advocate, the learned counsel for
the petitioner, Sri Dheeraj Ojha, the learned
Standing Counsel for the State and perused
the records.

2. By means of the instant writ
petition filed under Article 226 of the
Constitution of India, the petitioner has
challenged the validity of the order dated
16.02.1993, passed by the opposite party
no.2/Chief
Revenue
Officer,
District
Sultanpur in Case No.74 of 1985, under
Section 10 (2) of U.P. Imposition of
Ceiling on Land Holdings Act (which
will be hereinafter referred to as 'the
Ceiling Act'), declaring 30 bigha, 16
biswa and 13 biswanshi land of the
petitioner to be surplus. The petitioner
has also challenged validity of the order
dated 01.01.1996, passed by the opposite
party
no.3/Additional
Commissioner
Judicial, Faizabad Region, Faizabad in
Appeal No.79/Sultanpur under Section 13
of the Ceiling Act, whereby the appellate
authority has declared the land of Gata
Nos.1487, 1488, 1489, 1490, 1492, 1494,
1496, 1497, 1498, 2093 as unirrigated
and has directed redetermination of the
surplus
land
of
the
petitioner
in
accordance with the directions issued by
the appellate court.

3. Briefly stated, the facts of the
case are that Sri Badri Pratap Singh was the
original tenure holder of the lands in
dispute. On 22.04.1974, a notice under
Section 10 (2) of Ceiling Act was issued to
him proposing 32 bighas, 8 biswas and 14
dhur land situate in Village Tirhut to be
declared as surplus. Sri Badri Pratap Singh
has submitted his objections before the
Prescribed
Authority
on
21.05.1974,
wherein he inter alia stated that he had sold
away some lands.

4. On 01.11.1974, the Prescribed
Authority had passed an order declaring 32
bigha, 8 biswa and 2 dhur land of Sri Badri
Pratap Singh to be surplus.

5. Sri Badri Pratap Singh had filed
a Ceiling Appeal No.54 of 1974 against the
aforesaid order dated 01.11.1974, passed by
the Prescribed Authority, which appeal was
dismissed by means of an order dated
08.01.1977,
passed
by
the
Second
Additional District Judge, Sultanpur.

6. Sri Badri Pratap Singh had
challenged both the aforesaid orders by
filing Writ Petition No.354 of 1977, which
was allowed by means of a judgment and
order dated 27.11.1978, passed by this
court and the orders passed by the
Prescribed Authority and the Appellate
Authority were quashed. The learned
Prescribed Authority was directed to redetermine as to whether the land of the
petitioner was irrigated land in accordance
with the principles contained in Section 4A of Ceiling Act and to redetermine the
ceiling area and the surplus land of the
petitioner in accordance with law. It is
recorded in the order dated 27.11.1978 that
no other plea was urged before this court
and while remanding the matter, this court
made it clear that the petitioner shall not be
entitled to re-agitate any other plea before
the Prescribed Authority.

7. After remand of the matter by
means of order dated 27.11.1978, the
Prescribed Authority decided the matter by
means of an order dated 14.04.1982
holding
that
all
the
gata
numbers
mentioned in Ceiling Form-3 are irrigated
as per the provisions contained in Section
1570 INDIAN LAW REPORTS ALLAHABAD SERIES
4-A of Ceiling Act and he declared 32
bigha, 8 biswa and 2 dhur land of Sri Badri
Pratap Singh to be surplus.

8. It is further mentioned in the
order dated 14.04.1982 that the tenure
holder Sri Badri Pratap Singh had given an
option that his entire land be taken from
Khata Nos.293 and 885 in Village Gajanpur
Dhuria and the entire land of Khata No.156
in Village Tirhut and in case same falls
short, lands be taken from Khata No.40/1.
The Prescribed Authority recorded that the
land Forming part of Khata No.156 was not
recorded in the name of Sri Badri Pratap
Singh, rather it was recorded in the name of
Sukhpal Vidyalay, Tirhut. Therefore, the
land offered as option could not be taken
for being declared surplus land.

9. The tenure holder Sri Badri
Pratap Singh again filed Ceiling Appeal
No.10/82, which was decided by the
Second
Additional
District
Judge,
Sultanpur by means of a judgment and
order dated 25.11.1982 holding that the
irrigated land was not ascertained after
perusal of the entries made in the relevant
khasras as was directed by this court. The
appellate authority again remanded the
matter to the Prescribed Authority for being
decided as per directions of this court.

10. After remand of the matter to
the Prescribed Authority, the Principal
Sukhpal Inter College Tirhut, Sultanpur
filed his objections on 18.07.1984 inter alia
stating that Sri Badri Pratap Singh died in
the year 1981. He had established Sukhpal
Vidyalay in his father's name. He had
created a waqf of his land in favour of the
school in July, 1951 while the school was a
Junior High School. In December, 1971 Sri
Badri Pratap Singh had created waqf of 15
bigha, 12 biswa, 10 dhur land in favour of
the school. Thereafter, the school needed
some more land for obtaining recognition
for High School - Agriculture and Sri Badri
Pratap Singh had given 18 bigha, 19 biswa,
8 dhur land to the school for this purpose,
but he could not execute a gift deed as
ceiling proceedings were going on. The
school was granted recognition for High
School - Agriculture, but recognition for
Intermediate - Agriculture was not given to
the school. The school had given an
application to the Chief Minister requesting
that while determining the school land in
proceedings under the Ceiling Act, the land
in possession of the school be not take into
consideration as the land of tenure holder
Sri Badri Pratap Singh as although
mutation could not be carried out in favour
of the school, the school was in possession
of the land. It was stated in the objection
that subsequently school was granted
recognition for Intermediate Agriculture,
but the date of recognition has not been
disclosed in the objection.

11. After remand, the Prescribed
Authority passed an order dated 16.02.1993
whereby a total of 130 bigha, 16 biswa, 13
biswansi irrigated land was declared
surplus. The Prescribed Authority found
that the Khasra for the year 1978 mentions
2 crops on lands bearing Gata nos. 1474 to
1490 and the lands were irrigated from the
tube-well installed in gata no. 1801. Two
crops were recorded in respect of lands
bearing Gata nos. 1492, 1494, 1495, 1496
and 1497. Khasra of 1378 Fasli mentions 2
crops on Gata nos. 2093 and 1495 and there
is a sign of a tube-well on gata no. 1001.
Therefore, all the gatas will be treated to be
irrigated / unirrigated as per the preliminary
report.

12. Sri Badri Pratap Singh died
and the petitioner Sri. Om Prakash Singh
4 All. Om Prakash Singh Vs. State of U.P. & Ors.
1571
filed Appeal No.79, under Section 13
Ceiling Act against the order dated
16.02.1993 passed by the Prescribed
Authority, claiming himself to be the
successor of Late Badri Pratap Singh on the
basis
of
his
last.
Two
points
for
determination were framed in the appeal -
(1) whether the land in respect whereof a
waqf had been created in favour of Sukhpal
Vidyalay, should be treated to be the land
of the tenure holder or not and (2)
Determination of irrigated and unirrigated
land mentioned as such in the notice given
under Section 10(2) of the Ceiling Act. The
appeal was decided by means of an order
dated 01.01.1996 which is under challenge
in this writ petition.

13. While deciding the first question,
the appellate Court observed that Sri Om
Prakash Singh had filed additional objection
on
24.01.1992
before
the
Prescribed
Authority stating that certain land had been
entrusted to Sukhpal Vidyalay on 31.12.1971
and those should not be taken into
consideration while declaring surplus land of
the original tenure holder. The appellate court
found that the registered waqfnama dated
31.12.1971 had been executed after the
reference date 24.01.1971. Moreover, the
Management of Sukhpal Inter College had
not filed any application for treating the land
of the tenure holder to be belonging to the
intermediate college. From this the appellate
court inferred that the Management of the
school and the objector were acting in
collusion with each other. This plea had not
been raised by any person since 31.12.1971,
the date of execution of the registered deed. A
notice under Section 10 (2) of Ceiling Act
was given to the tenure holder in the year
1974. The matter had been decided by the
Prescribed Authority
on
two previous
occasions. This point was not raised even
before this court in Writ Petition No.354 of
1977. In the order dated 27.11.1978, passed
in the aforesaid writ petition this court had
clarified that besides point of the land being
irrigated or not, no other point will be raised
before the Prescribed Authority. Therefore, it
was not open to the appellant to raise this
plea.

14. While deciding the second
point for determination, the appellate
authority observed that as per the order
dated 27.11.1978 passed by this Court, the
irrigated and unirrigated lands were to be
determined as per the provisions contained
in Section 4-A of the Ceiling Act. There
were discrepancies in the copies of Khasra
filed by the tenure-holder and the State
Government and, therefore, those appeared
to be suspicious. Either the copies of
Khasra had not been prepared properly or
entries had been modified in the original
Khasra. A spot inspection report was
submitted by the Naib Tehsildar, which
stands affirmed by the Consolidation Form
41, 45 and base year khatauni against
which none of the parties have filed any
objection. The appellate Court found that
the copy of last Khasra was filed by the
State Government as paper no. 150 and it
appears to be just to take a decision as per
this document. It shows lands bearing Gata
nos. 1487, 1488, 1789, 1490, 1492, 1493,
1494, 1495, 1496, 1497, 1498 and 2093 to
be
unirrigated.
The
appellate
Court
declared the land bearing Gata Nos.1487,
1488, 1489, 1490, 1492, 1494, 1496, 1497,
1498, 2093 as unirrigated and surplus land
and
affirmed
the
inspection
report
submitted by the Naib Tehsildar on
08.11.1983 which was sent to the Pargana
Adhikari on 22.11.1993.

15. While assailing the validity of
the aforesaid orders, the learned counsel for
the petitioner has submitted that the
1572 INDIAN LAW REPORTS ALLAHABAD SERIES
original tenure holder Sri Badri Pratap
Singh had transferred the land in question
irrecoverably in favour of Sukhpal Inter
College on 31.12.1971 and, therefore, the
aforesaid land ought not to have been taken
into consideration while the ascertaining
surplus land of Badri Pratap Singh. The
learned Counsel for the petitioner has
placed reliance on a written declaration
dated 13.07.1970 (Annexure No. RA 2 to
the rejoinder affidavit) made by Sri. Badri
Pratap Singh on a stamp paper worth
Rs.2.50 only, stating that he had established
Sukhpal Vidyalay on 28.06.1951 and had
created a Waqf of some of his properties for
this purpose. He had further gifted some of
his properties in favour of the school on
28.06.1970 as per the religious practices
and that he will execute a legal document
in respect of the entire gifted property or a
part of it and till a mutation of names is
carried out, he will continue to pay the land
revenue.

16. The statutory provision in this
regard is contained in Section 5 of the
Ceiling Act, the relevant part whereof is
being reproduced below: -

"5. Imposition of ceiling- (1) On
and from the commencement of the Uttar
Pradesh Imposition of Ceiling on Land
Holdings (Amendment) Act, 1972, no
tenure-holder shall be entitled to hold in
the aggregate, throughout Uttar Pradesh,
any land in excess of the ceiling area
applicable to him.
Explanation I - In determining the
ceiling area applicable to a tenure holder,
all land held by him in his own right,
whether in his own name, or ostensibly in
the name of any other person, shall be
taken into account.
Explanation II - If on or before
January 24, 1971, any land was held by a
person who continues to be in its actual
cultivatory possessions and the name of
any other person is entered in the annual
register after the said date either in
addition to or to the exclusion of the former
and whether on the basis of deed of
transfer or license or on the basis of a
decree, it shall be presumed, unless the
contrary is proved to the satisfaction of the
prescribed
authority,
that
the
first
mentioned person continues to hold the
land and that it is so held by him ostensibly
in the name of the second mentioned
person.
(2) Nothing in sub-section (1)
shall apply to land held by the following
classes of persons, namely :
(a) the Central Government, the
State Government or any local authority or
a Government Company or a Corporation ;
(b) a University ;
(c) an intermediate or degree
college imparting education in agriculture
or a post graduate college ;
(d) a banking company or a cooperative bank or a co-operative land
development bank ;
(e) the Bhoodan Yagna Committee
constituted under the U. P. Bhoodan Yagna
Act, 1952.
* * *
(6) In determining the ceiling area
applicable to a tenure-holder, any transfer
of land made after the twenty-fourth day of
January, 1971 which but for the transfer
would have been declared surplus land
under this Act, shall be ignored and not
taken into account ;
(a) a transfer in favour of any
person (including Government) referred to
in sub-section (2) ;
(b) a transfer proved to the
satisfaction of the prescribed authority to
be in good faith and for adequate
consideration and under an irrevocable
4 All. Om Prakash Singh Vs. State of U.P. & Ors.
1573
instrument not being a benami transaction
or for the immediate or deferred benefit of
the tenure-holder or other members of his
family. 3
Explanation I - For the purposes
of this sub-section, the expression 'transfer
of land made after the twenty-fourth day of
January, 1971', includes -
(a) a declaration of a person as a
co-tenure-holder made after the twentyfourth day of January, 1971, in a suit, or
proceeding irrespective of whether such
suit or proceeding was pending on or was
instituted after the twenty-fourth day of
January, 1971 ;
(b)
any
admission,
acknowledgment,
relinquishment
or
declaration in favour of a person to the life
effect, made in any other deed or
instrument or in any other manner.
Explanation II - The burden of
proving that a case falls within clause (b)
of the proviso shall rest with the party
claiming its benefit.
* * *"

17. The Explanations appended to
sub-section (6) of Section 5 of the Ceiling
Act refer to declarations made after
24.01.1971 whereas Sri. Badri Pratap Singh
had made the written declaration of
13.07.1970,
which
was
not
after
24.01.1971 so as to be covered by the
Explanations appended to sub-section (6)
of Section 5. Moreover, the content of the
declaration was also vague, as the executed
stated that he will execute a legal document
in respect of the entire gifted property or a
part of it. For the aforesaid reasons, this
declaration will not be covered by the
Explanations appended to Section 5 (6) of
the Ceiling Act.

18. So far as the registered
waqfnama dated 31.12.1971 is concerned,
it was executed after the reference date
24.01.1971 and, therefore, it will not fall
within the purview of Section 5 (6).
Moreover, on the date of the alleged
transfer, Sukhpal Vidyalay, in whose favour
the land was transferred, was not an
intermediate or degree college imparting
education in agriculture. As the transfer
was not made in favour of any person
mentioned in sub-section (2) of Section 5,
it would not fall within the proviso (a)
appended to sub Section 5 (6). The transfer
was
not
made
for
any
'adequate
consideration' and therefore this transfer
would not fall within the proviso (b)
appended to sub Section 5 (6).

19. In the written submissions, it
has been contended that the Appellate
Authority has found that the copies of
Khasra for the years 1378 and 1380 Fasli
years were incorrect, yet it has taken a copy
of the khasra (paper no. 150) as true for the
purposes of determination of the land being
irrigated, which is in violation of the order
dated 27.11.1998 passed by this Court as
also the provisions of Section 4-A of the
Ceiling Act.

20. Relying upon the judgments in
the cases of Hareshwar Dayal Seth versus
II Additional District Judge and others:
1982 All C J 207 and Ram Sagar versus
Civil Judge, Bahraich and others: 1984
SCC OnLine All 404, Sri. Tripathi has
submitted that the onus to prove that the
land is irrigated, lies on the State.

21. Section 4-A of the Ceiling Act
reads as follows: -

"4-A. The prescribed authority
shall examine the relevant khasras for the
years 1378 Fasli, 1379 Fasli and 1380
Fasli, the latest village map and such
1574 INDIAN LAW REPORTS ALLAHABAD SERIES
other
records
as
it
may
consider
necessary, and may also make local
inspection where it considers necessary,
and thereupon if the prescribed authority
is of opinion :-
Firstly, (a) that, irrigation facility
was available for any land in respect of
any crop in any one of the aforesaid years
; by -
(i) any canal included in Schedule
no. 1 of irrigation rates notified in
notification
no.
1579-W/XXIII-62-W1946, dated March 31, 1953, as amended
from time to time ; or
(ii) any lift irrigation canal ; or
(iii) any State tube-well or a
private irrigation work ; and
(b) that at least two crops were
grown in such land in any one of the
aforesaid years ; or
Secondly, that irrigation facility
became available to any land by a State
Irrigation Work coming into operation
subsequent to the enforcement of the Uttar
Pradesh Imposition of Ceiling on Land
Holdings (Amendment) Act, 1972, and at
least two crops were grown in such land in
any agricultural year between the date of
such work coming into operation and the
date of issue of notice under section 10 ;
or
Thirdly, (a) that any land is
situated within the effective command area
of a lift irrigation canal or a State tubewell or a private irrigation work ; and
(b) that the class and composition
of its soil is such that it is capable of
growing at least two crops in an
agricultural year ;
then the prescribed Authority shall
determine such land to be irrigate land for
the purposes of this Act.
Explanation I - For the purposes
of this section the expression 'effective
command area' means an area, the farthest
field whereof in any direction was irrigated
-
(a) in any of the year, 1378 Fasli,
1379 Fasli and 1380 Fasli ; or
(b)
in
any
agricultural
year
referred to in the clause 'secondly'.
Explanation II - The ownership
and location of a private irrigation work
shall not be relevant for the purpose of
this section.
Explanation
III
-
Where
sugarcane crop was grown on any land in
any of the years 1378 Fasli, 1379 Fasli and
1380 Fasli, it shall be deemed the two
crops were grown on it in any of these
years, and that the land capable of growing
two crops in an agricultural year."

22. The Prescribed Authority has
recorded a finding that Khasra for the year
1978 mentions 2 crops on lands bearing
Gata nos. 1474 to 1490 and the lands were
irrigated from the tube-well installed in
gata no. 1801. Two crops were recorded in
respect of lands bearing Gata nos. 1492,
1494, 1495, 1496 and 1497. Khasra of
1378 Fasli mentions 2 crops on Gata nos.
2093 and 1495 and there is a sign of a tubewell on gata no. 1001.

23. The appellate authority found
that there were discrepancies in the copies
of Khasra filed by the tenure-holder and the
State Government, which indicates that
either the copies of Khasra had not been
prepared properly or entries had been
modified in the original Khasra. A spot
inspection report was submitted by the
Naib Tehsildar, which stands affirmed by
the Consolidation Form 41, 45 and base
year khatauni against which none of the
parties have filed any objection. The
appellate Court found that the copy of last
Khasra was filed by the State Government
as paper no. 150 and it appears to be just to
4 All. Om Prakash Singh Vs. State of U.P. & Ors.
1575
take a decision as per this document. It
shows lands bearing Gata nos. 1487, 1488,
1789, 1490, 1492, 1493, 1494, 1495, 1496,
1497, 1498 and 2093 to be unirrigated.
Accordingly, the appellate Court declared
the land bearing Gata Nos.1487, 1488,
1489, 1490, 1492, 1494, 1496, 1497, 1498,
2093 as unirrigated and surplus land and
affirmed the inspection report submitted by
the Naib Tehsildar on 08.11.1983 which
was sent to the Pargana Adhikari on
22.11.1993.

24. As per the provision contained
in Section 4-A, the Prescribed Authority
need not confine itself to examination of
the relevant khasras for the years 1378
Fasli, 1379 Fasli and 1380 Fasli only. He
has to examine the latest village map and
such other records as it may consider
necessary, and may also make local
inspection where it considers necessary. It
is settled law that the powers of the
Appellate Authority are co-extensive with
the original authority. When the copies of
Khasra were found to be suspicious, the
Appellate Court has not committed any
error in relying upon those entry in the last
khasra, which had been corroborated by
other relevant material in the shape of spot
inspection report was submitted by the
Naib Tehsildar, which stands affirmed by
the Consolidation Form 41, 45 and base
year khatauni against which none of the
parties have filed any objection. The
petitioner having not filed any objection in
this regard before the Appellate Court, is
stopped from raising this objection for the
first time before this Court.

25. Therefore, the State has
discharged its onus and there is no violation
of the principles of law laid down in
Hareshwar
Dayal
Seth
versus
II
Additional District Judge and others:
1982 All C J 207 and Ram Sagar versus
Civil Judge, Bahraich and others: 1984
SCC OnLine All 404.

26. The learned Counsel for the
petitioner lastly submitted that when the
objection of the petitioner regarding land in
possession of Sukhpal Vidyalay had been
rejected and the land was treated to be land
of tenure holder, the petitioner's option to
declare that land as surplus ought to have
been accepted.

27. The statutory provision in this
regard is contained in Section 12-A of the
Ceiling Act, which provides as follows: -

12-A. In determining the surplus
land under section 11 or section 12, the
prescribed authority shall, as far as
possible accept the choice indicated by the
tenure-holder to the plot or plots which he
and other members of his family if any
would like to retain as part of the ceiling
area applicable to him or them under the
provisions of this Act, whether indicated
by him in his statement under Section 9 or
in any subsequent proceedings ;
Provided that -
* * *"

28. The Prescribed Authority has
been given the discretion to accept the
choice indicated by the tenure-holder as far
as possible. Title in respect of the land,
which the petitioner opted to be declared
surplus, had been transferred to Sukhpal
Vidyalay in violation of the provisions of
the Ceiling Act. This point had not been
raised by the tenure-holder since the
alleged transfer made in the year 1971 and
it was raised for the first time before the
Appellate Court after remand of the matter,
the Appellate Court found that the appellant
and the management of the Vidyalay were
1576 INDIAN LAW REPORTS ALLAHABAD SERIES
acting in collusion with each other. The
land was not in physical possession of the
petitioner and it was not available to be
allotted to any other person. In these
circumstances, the Appellate Court has not
committed any illegality in not declaring
the land which the petitioner and the
Sukhpal Vidyalay claimed to have been
transferred to the Vidyalay and in declaring
other land held by the petitioner to be
surplus.

29. No other point was pressed
before me.

30. In view of the foregoing
discussion, I find no illegality in the
impugned orders. The Writ Petition is
without any force and the same is hereby
dismissed.
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(2024) 4 ILRA 1576
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 08.04.2024

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Writ-C No. 3000076 of 2008

Dasoda Singh ...Petitioner
Versus
Ayukt Lucknow Division, Lko.
 ...Respondent

Counsel for the Petitioner:
V.K. Pandey

Counsel for the Respondent:
C.S.C.

Civil Law - U.P. Imposition Of Ceiling On
Land Holdings Act,1972 - Section 10(2) -
4.50 acre un-irrigated land of the petitioners'
father was declared to be surplus -appealallowed - order was modified by reducing the
surplus
land
area
to
4.10
acres
-after
Petitioner's father died - a notice u/s10(2) of the
Ceiling Act was issued to the petitioners -filed
their objections and the proceedings were
closed -holding the same to be hit by the
principles of res-judicata -State filed an appeal -
allowed and the matter was remanded but even
after remand-the Prescribed Authority closed
the proceedings -another notice u/s 10(2) of the
Ceiling Act-Section 4-A of the Ceiling Act - for a
land to be determined as an irrigated land- it is
necessary that it should have been irrigated in
the years 1378 Fasli, 1979 Fasli and 1380 Fasli-
no such material available on record -Section
29(b) of the Ceiling Act -after the date of
enforcement of Act, 1972 -any un-irrigated land
becomes irrigated as a result of "irrigation from
the State irrigation work"- the Ceiling area shall
be liable to be re-determined-no occasion for
issuance of a fresh notice -not permissible in
law.

Writ Petition allowed. (E-9)

(Delivered by Hon'ble Subhash Vidyarthi, J.)

1. Heard Sri V.K. Pandey, the
learned counsel for the petitioner and Sri
S.P. Maurya, the learned Standing Counsel.

2. By means of the instant writ
petition filed under Article 226 of the
Constitution of India, the petitioners have
challenged the validity of an order dated
27.02.2007 passed by the Prescribed
Authority Ceiling Act/Additional Collector,
Kheri in Case No. 37/2004-05 under
Section 10(2) Uttar Pradesh Imposition of
Ceiling on Land Holdings (Amendment)
Act, 1972, whereby 5.38 hectares land of
the
petitioners
situated
in
Village
Sumerpur, Pargana and Tehsil Palia,
District Lakhimpur Kheri was declared
surplus
and
proceedings
for
taking
possession of that land were initiated. The
petitioners have also challenged the validity
of an order dated 25.07.2008 passed by the
Commissioner,
Lucknow
Division,
Lucknow dismissing Appeal No. 102/2006-