# Rajeshwar Pratap Sahi v. Addl. Commissioner Gorakhpur & Ors

- **Citation:** (2025) 9 ILRA 482
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-09-26
- **Case number:** Writ C No. 47383 of 2003
- **Bench:** Prakash Padia
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajeshwar-pratap-sahi-v-addl-commissioner-gorakhpur-ors-53918
- **Pages:** 39

## Headnote

Alok Singh, Bala Nath Mishra, Hausihla
Prasad Mishra, Pavan Kumar Yadav, Ram
Vishal Mishra, Vivekanand Yadav

Issue for Consideration
Whether, in view of the final judgment of the
High Court dated 07.11.1969 quashing the
revised notice dated 04.10.1963, the ceiling
authorities could have proceeded contrary
thereto by issuing fresh notices, registering
fresh
ceiling
cases
and
declaring
land
transferred prior to 24.01.1971 as surplus,
ignoring binding judicial findings, revenue
records, consolidation proceedings, limitation
under Section 31 of the Act, and principles
governing jurisdiction and natural justice.

Headnotes
Ceiling proceedings under the U.P. Imposition of
Ceiling on Land Holdings Act, 1960 - First notice
dated 21.08.1962 did not include the land which
was sold and transferred up to 1961 through
registered sale deeds - Prescribed Authority,
vide
order
dated
04.10.1963,
directed
preparation of a fresh notice which included the
land which had been transferred - Said notice
challenged in Writ Petition No. 4772 of 1963,
which was allowed on 07.11.1969 - High Court
held that if a statement has been prepared on
the basis of revenue records, that statement
should be taken to be correct and that the
Prescribed Authority had no jurisdiction to issue
a fresh notice - Order dated 04.10.1963
quashed - Judgment attained finality - Findings
recorded therein binding on the State - Ceiling
authorities could not have proceeded contrary
thereto or taken any steps for any reassessment
- Ceiling authorities could not have made any
enquiry into the sale deeds executed prior to
24.01.1971 - Land transferred prior to the cutoff date could not have been included in any
fresh notice - Findings of Consolidation Officer
dated 09.02.1983 confirming transfers and
revenue records after participation of Naib
Tehsildar (Ceiling) - Such findings constituted
documentary evidence relating to transfers prior
to
24.01.1971
-
Proceedings
under
the
Consolidation of Holdings Act, even if by virtue
of Section 38-B they do not operate as res
judicata, yet they do not lose their evidentiary
value - Repeated notices issued - Proceedings
initiated against dead persons - Ex parte orders
passed without notice - Registration of fresh
ceiling
cases
during
pendency
of
earlier
proceedings - An exercise contrary to law -
Limitation under Section 31(2) not noticed -
Burden wrongly shifted upon petitioner -
Findings
regarding
benami
transfers
and
mutation held perverse - Non-consideration of
affidavits and relevant material - Binding effect
of earlier judgments and evidence omitted to be
considered - Prescribed Authority acted beyond
jurisdiction
-
Impugned
orders
dated
19.07.1993, 31.03.1995 and appellate order
dated 14.10.2003 quashed - Ceiling Case No.
48/18 and Ceiling Case No. 45 annulled . (Paras
73-123)
HELD:
Proceedings were initiated against the petitioner
under the U.P. Imposition of Ceiling on Land
Holdings Act and an order dated 04.10.1963
was passed by the Prescribed Authori

## Text

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482 INDIAN LAW REPORTS ALLAHABAD SERIES
----------
(2025) 9 ILRA 482
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.09.2025

BEFORE

THE HON'BLE PRAKASH PADIA, J.

Writ C No. 47383 of 2003

Rajeshwar Pratap Sahi ...Petitioner
Versus
Addl. Commissioner Gorakhpur & Ors.
 ...Respondents

Counsel for the Petitioner:
Anil Kumar Rai, Kartikeya Saran, Om
Prakash Yadav, S.N. Singh, Sankalp Narain,
Srivats Narain

Counsel for the Respondents:
Alok Singh, Bala Nath Mishra, Hausihla
Prasad Mishra, Pavan Kumar Yadav, Ram
Vishal Mishra, Vivekanand Yadav

Issue for Consideration
Whether, in view of the final judgment of the
High Court dated 07.11.1969 quashing the
revised notice dated 04.10.1963, the ceiling
authorities could have proceeded contrary
thereto by issuing fresh notices, registering
fresh
ceiling
cases
and
declaring
land
transferred prior to 24.01.1971 as surplus,
ignoring binding judicial findings, revenue
records, consolidation proceedings, limitation
under Section 31 of the Act, and principles
governing jurisdiction and natural justice.

Headnotes
Ceiling proceedings under the U.P. Imposition of
Ceiling on Land Holdings Act, 1960 - First notice
dated 21.08.1962 did not include the land which
was sold and transferred up to 1961 through
registered sale deeds - Prescribed Authority,
vide
order
dated
04.10.1963,
directed
preparation of a fresh notice which included the
land which had been transferred - Said notice
challenged in Writ Petition No. 4772 of 1963,
which was allowed on 07.11.1969 - High Court
held that if a statement has been prepared on
the basis of revenue records, that statement
should be taken to be correct and that the
Prescribed Authority had no jurisdiction to issue
a fresh notice - Order dated 04.10.1963
quashed - Judgment attained finality - Findings
recorded therein binding on the State - Ceiling
authorities could not have proceeded contrary
thereto or taken any steps for any reassessment
- Ceiling authorities could not have made any
enquiry into the sale deeds executed prior to
24.01.1971 - Land transferred prior to the cutoff date could not have been included in any
fresh notice - Findings of Consolidation Officer
dated 09.02.1983 confirming transfers and
revenue records after participation of Naib
Tehsildar (Ceiling) - Such findings constituted
documentary evidence relating to transfers prior
to
24.01.1971
-
Proceedings
under
the
Consolidation of Holdings Act, even if by virtue
of Section 38-B they do not operate as res
judicata, yet they do not lose their evidentiary
value - Repeated notices issued - Proceedings
initiated against dead persons - Ex parte orders
passed without notice - Registration of fresh
ceiling
cases
during
pendency
of
earlier
proceedings - An exercise contrary to law -
Limitation under Section 31(2) not noticed -
Burden wrongly shifted upon petitioner -
Findings
regarding
benami
transfers
and
mutation held perverse - Non-consideration of
affidavits and relevant material - Binding effect
of earlier judgments and evidence omitted to be
considered - Prescribed Authority acted beyond
jurisdiction
-
Impugned
orders
dated
19.07.1993, 31.03.1995 and appellate order
dated 14.10.2003 quashed - Ceiling Case No.
48/18 and Ceiling Case No. 45 annulled . (Paras
73-123)
HELD:
Proceedings were initiated against the petitioner
under the U.P. Imposition of Ceiling on Land
Holdings Act and an order dated 04.10.1963
was passed by the Prescribed Authority against
the father of the petitioner. Father of the
petitioner filed Writ Petition No. 4772 of 1963,
which was finally allowed vide judgment and
order dated 07.11.1969 and the order dated
04.10.1963 passed by the Prescribed Authority
was set aside, and he was directed to decide
the objections filed by the father of the
petitioner on the statement prepared in CLH
Form-3. Ceiling authorities and their officials,
9 All. Rajeshwar Pratap Sahi Vs. Addl. Commissioner Gorakhpur & Ors.
483
being bound by the said findings and the
judgment of the High Court, could not have
proceeded contrary thereto or taken any steps
for
reassessment
or
for
initiating
any
proceedings in respect of the land. Neither could
the Prescribed Authority have issued any fresh
notice in respect of the said land nor could any
examination of the facts relating to the sale
deeds executed prior to 24.01.1971 have been
undertaken by them after the amending Act
came into force. The land which stood
transferred prior to 24.01.1971 could not have
been made the basis for any fresh notice.
Prescribed Authority acted beyond jurisdiction in
declaring the land of village Pipra as surplus and
illegally included the same in the holding of the
original tenure holder and the petitioner by
instituting fresh Ceiling Case No. 45 by the
impugned
order
dated
19.07.1993.
Consequently, the impugned orders of the
Prescribed Authority dated 19.07.1993 and
31.03.1995, as well as the impugned order
passed by the Appellate Authority dated
14.10.2003, were quashed and the proceedings
of Ceiling Case No. 48/18 and Ceiling Case No.
45 were annulled.
Writ Petition allowed. (E-5)

Case Law Cited
Ramdhar Singh v. Prescribed Authority & Ors.,
1994 Supp (3) SCC 702;
Jhandoo v. State of U.P. & Ors., 1977 AWC 318
: 1977 (3) ALR 418;
Arvind Kumar v. State of U.P. & Ors., (2016) 9
SCC 221;
Ravi Yashwant Bhoir v. District Collector,
Raigarh & Ors., (2012) 4 SCC 407;
Sama Aruna v. State of Telangana, (2018) 12
SCC 150;
Upper Ganges Sugar Mills Ltd. v. Civil Judge,
Bijnor & Ors., 1969 RD 202;

List of Acts
U.P. Imposition of Ceiling on Land Holdings Act,
1960;
U.P. Consolidation of Holdings Act, 1954;

List of Keywords
Ceiling
proceedings;
Fresh
notice;
Jurisdiction;
Binding
judgment;
Finality;
Revenue
records;
Transfers
prior
to
24.01.1971;
CLH
Form-3;
Consolidation
proceedings; Evidentiary value; Section 38-B;
Limitation; Proceedings against dead person;
Ex-parte orders; Malice in law; Abuse of
power; Article 300-A.

Case Arising From
Orders dated 19.07.1993 and 31.03.1995
passed by the Prescribed Authority and
appellate order dated 14.10.2003 passed by
the Addl. Commissioner, Gorakhpur.

Appearances for Parties
Advs For the Petitioner:
Anil Kumar Rai, Kartikeya Saran, Om Prakash
Yadav, S.N. Singh, Sankalp Narain, Srivats
Narain
Advs For the Respondents:
Alok Singh, Bala Nath Mishra, Hausihla Prasad
Mishra, Pavan Kumar Yadav, Ram Vishal
Mishra, Vivekanand Yadav

(Delivered by Hon'ble Prakash Padia, J.)

1. Heard Sri G.K. Singh, learned
Senior Counsel assisted by Sri Sankalp
Narain, learned counsel for the petitioner
and Sri Vijay Shankar Prasad, learned
counsel for the State-respondents and the
counsel for the applicant who moved an
application for impleadment. .

2. The present petition has been filed
by
the
petitioner
as
a
result
of
proceedings under the UP Imposition of
Ceiling on Land Holdings Act, 1960
whereby Land treated to be the holding of
the petitioner has been declared surplus
under the impugned orders passed by the
prescribed authority dated 19.07.1993
(Annexure 16, pg 191) and 31.03.1995
(Annexure 13, pg 128) as well as the
impugned
appellate
order
dated
14.10.2003 (Annexure 15, pg 172).

3. The challenge raised is broadly on
the ground that the impugned orders
overlook
the
impact
of
the
earlier
judgments of the High Court dated
07.11.1969 (Annexure 1, pg 40) and
484 INDIAN LAW REPORTS ALLAHABAD SERIES
21.08.1997 (Annexure 14, pg 166) as well
as relevant and material evidence which
proves the fact of a substantial area of the
land having been transferred much prior to
the cut-off date of 24.01.1971 that were
bonafide transactions as well as the orders
passed by the Revenue / Consolidation
Authorities evidencing and confirming the
transactions which establish that the ceiling
authorities have erroneously proceeded to
issue notices that were invalid and had also
been held as such in the Judgement of the
High
Court
dated
07.11.1969.
The
Impugned Orders have therefore been
questioned contending that they are in teeth
of the Judgment and orders that have
intervened as well as suffer from perversity
on account of non-consideration of relevant
material evidence or ignoring the impact
thereof. Other submissions oral and written
have also been raised that shall be dealt
with in detail hereinafter.

4. At the very outset, learned counsel
for the Petitioner argued that one of the
issues relating to the transfer of a
substantial area of land by the Original
Tenure Holder through registered sale deed
for consideration had taken place in 1961
or even before that and the first ceiling
notice that was issued to the tenure holder
21.08.1962 (Annexure SA-1, pg 12) did not
include the land which had already been
sold and transferred was all prior to the
issuance of the ceiling notice.

5. Objections to the said notice had
also been filed by the tenure holder and in
between some rank outsider gave an
application before the prescribed authority
on 17.11.1962 informing the prescribed
authority to also include the land that had
been transferred by the original tenure
holder who was the petitioner's late father.
The Prescribed authority entertained the
said application and called upon the Naib
Tehsildar to prepare a fresh notice that was
served on the Original Tenure Holder and
which included the land which has been
transferred.

6. This amended / revised Notice
pursuant to the Order of Prescribed
Authority dated 4.10.1963 were both
challenged by the Original Tenure Holder
in Civil Writ Petition No. 4772/1963
wherein further proceedings were initially
stayed and the writ petition was ultimately
allowed on 07.11.1969 (Annexure 1, pg 40)
by the High Court.

7. Learned counsel for the petitioner
argued that a perusal of the said judgement
would leave no room for doubt that the
issuance of the Notice by the Prescribed
Authority impugned in the writ petition
was without jurisdiction as it had been
initiated at the instance of a person who
had no locus in the matter. The High Court
further called upon the State to explain by
filing a supplementary counter affidavit as
to the nature of the land as to whether it
was a grove or not on the relevant date. The
State failed to file any counter affidavit to
that effect as desired but the affidavit which
was brought on record on behalf of the
State was disbelieved as it was based on
personal knowledge. It was accordingly
held that the revenue records reflected the
correct position and therefore, the notice
initially issued to the Original Tenure
Holder where the said lands had not been
included, was correctly prepared.

8. It was argued that under the original
ceiling act of 1960 under section 6(1),
grove land was totally exempt and could
not be subjected to inclusion for ceiling
purposes in the holding of a Tenure Holder.
The judgment dated 7.11.69 therefore,
9 All. Rajeshwar Pratap Sahi Vs. Addl. Commissioner Gorakhpur & Ors.
485
acknowledged the revenue records to that
effect and to that extent it was held that
prescribed authority had no jurisdiction to
issue a fresh notice on the basis of alleged
revised statement. The order of the
prescribed
authority
dated
04.10.1963
initiating the fresh notice was held to be
without jurisdiction and was accordingly
quashed and directions were issued to
dispose of the objections filed by the
Original Tenure Holder on the basis of the
original CLH Form 3.

9. It was next argued that the fresh
notice seems to have been issued on 12-111974 and further notices had been issued in
the name of one Rani Jagdiswari Kunwari
who had died more than two decades ago.
The notices relating to the land that was
proposed surplus in the holding of Rani
Jagdiswari Kunwari was not served on the
Original Tenure Holder Bisheshwar Pratap
Sahi and his two brothers Khagendra
Pratap Sahi and Novendra Pratap Sahi and
without affording any opportunity of
hearing an order was passed by the
prescribed
authority
on
13.03.1975,
25.03.1975 and 29.03.1975. All three
orders of the prescribed authority were
challenged in appeal before the Ld.
Second Additional District Judge in
Ceiling Appeal No. 478, 479 and 480 of
1975. Appeal No. 478/1975 was allowed
on 09.07.1979 (Annexure 2, pg 48)
holding that notice could not have been
sent to a dead person and without
affording any opportunity to Original
Tenure Holder, the matter could not have
proceeded and accordingly all the orders
were set aside remanding the matter back
for recalculating the share of each of the
brothers in the said holding. The other
two appeals being Appeal Nos. 479 and
480/1975 were allowed in terms of
Appeal No. 478/1975.

10. Mr. Singh counsel for the
Petitioner has drawn the attention of this
Court to the effect that consolidation
process had set commenced under the U.P.
Consolidation of Land Holdings Act, 1960
and a large number of objections by third
parties were filed in respect of the holdings
of village Pipra by Individuals claiming
that the revenue entries reflected their title
and possession over the respective plots as
against the recorded tenure holders in
possession who were the transferees of the
Petitioner's late father, the Original Tenure
Holder. As noted above the transfers had
been made in favour of the purchasers
between 1959 and 1961 However, in all
these proceedings objections had been filed
in relation to some of the land in Village
Pipra that stood recorded in the name of the
Original Tenure Holder, the Petitioner's late
father and his two brothers as well as over
the holdings that stood recorded in the
name of the transferees of the original
tenure holder. Accordingly, the Original
Tenure Holder namely the Petitioner's late
father was arrayed as a Party and all the
objections filed by those third parties were
consolidated
and
heard
by
the
Consolidation
Officer
exercising
jurisdiction under section 9(a)(2) under UP
CH Act, 1953. The aforesaid decision of
the Consolidation Officer deciding the
objections on 09.02.1983 (Annexure 8, pg
80) was filed before the prescribed
authority and has also been filed in this
Petition as evidence. The decision disposed
of the objections in relation to the entire
land of village Pipra transferred between
1959 and 1961 by the Original Tenure
Holder and was contested before the
Consolidation Officer. The claim of the
objectors was rejected on the ground that
they had relied on extracts of revenue
records which were fake and forged and
further the entries in the relevant khataunis
486 INDIAN LAW REPORTS ALLAHABAD SERIES
beginning from 1359 Fasli had been
tampered and interpolated.

11. While dealing with the evidence
and the facts relating to the revenue entries
in the recorded tenure holders it was also
noted that the Tenure Holders alleged that
the land had been sold by the erstwhile
proprietors. The references to the orders
passed by Revenue Authorities by the
Objectors were found to be fake and their
endorsement were held to be forged
thereby maintaining the entries in favour of
the recorded tenure holders which included
the transferees from the Petitioner's late
Father between 1959 and 1961.

12. During the proceedings, it was
recorded by the Consolidation Officer that
the Naib Tehsildar (Ceiling) had also filed
a response in these proceedings and then
findings were recorded evidencing the fact
of the quashing of the notice by the High
Court
through
its
Judgment
dated
07.11.1969 (Annexure 1, pg 40). The
Consolidation Officer therefore, also relied
on this evidence and reaffirmed the
evidence regarding the transfer of the land
between 1959 and 1961 through registered
sale deeds.

13. To further support its conclusion
the Consolidation officer also referred to
the photocopies of the sale-deeds that had
been filed on behalf of the recorded Tenure
Holders that were also verified by the
Consolidation Officer and which was
further corroborated by the record of rights
the certified copies whereof were filed on
record and are described in the Land
Record Manual as Register Malikan
(Annexure SA-2,3,4,5, pg. 22, 24, 26, 28).
The relevant khasra of possession was the
same as that had been produced before the
Celling Authorities and before the High
Court in W.P. No. 4772 of 1963 decided on
7.11.69, and therefore its veracity and
probative value was confirmed by the
consolidation officer.

14. It was also held that the recorded
Tenure Holders who were the transferees
had participated in the proceedings and
were represented and evidence was filed on
their behalf and accordingly all the
objections filed by the strangers to the land
on the basis of fake entries were rejected.

15. It was submitted that the order of
the consolidation officer has attained
finality as the same had been upheld by the
Settlement
Officer
in
appeal
vide
judgement and order dated 20.06.1989, as
stated in paragraph 36 of the writ petition,
and was therefore, a valid piece of evidence
reckoning and acknowledging the past
transactions of transfers of the land in
village Pipra that stood confirmed by the
corroborative evidence of the revenue
entries as well as its culmination in the
decision
of
the
High
Court
dated
07.11.1969.

16. Meanwhile, the Original Tenure
Holder, namely, Bisheshwar Pratap Sahi,
father of the Petitioner, who had been
contesting all the proceedings before died
on 09.04.1989.

17. It was then pointed out that a fresh
notice had been prepared in the name of the
Original Tenure Holder and a fresh CLH
Form 3 was also prepared in his name on
23.06.1986. The said notice was never
served on the Petitioner's late father and on
the basis of an unsubstantiated report of
service
by
the
process
server,
the
prescribed authority passed an exparte
order on 2.05.1990 (Annexure 3, pg. 52). It
was argued that this order simply in three
9 All. Rajeshwar Pratap Sahi Vs. Addl. Commissioner Gorakhpur & Ors.
487
pages proceeds to to declare land surplus
without
referring
to
any
of
these
proceedings and orders referred to above.
The order was without any notice to the
Original Tenure Holder or to his heirs after
his death in 1989. There is no proof of
service recorded in the order dated
02.05.1990. The order incorrectly recorded
that in spite of substitution, and dispatch
and service of notice the heirs had not
responded
and
consequently,
it
was
presumed that they had no objections to the
notice
that
was
the
basis
of
the
proceedings. The said assumptions were
wrong
and
against
the
facts
and
consequently the petitioner moved an
application on 1990 to set aside the exparte order.

18. It has been stated by the petitioner
that initially an order of status quo was
passed on 27.03.1991 and applications had
been moved by the Petitioner pointing out
that the proceedings were concluded
without complying with the earlier orders
and also the objections taken regarding the
separation that had taken place between the
family members of the Original Tenure
Holder but none of these applications were
considered Requests were made through
applications for continuing the status quo
but all these applications were rejected on
14.02.1992 and a direction was issued for
enforcement of the exparte order dated
02.05.1990 (Annexure 3, pg 52).

19. Aggrieved against the same the
Petitioner filed an Appeal before the Ld.
Commissioner, which was allowed on
17.04.1993 (Annexure 4, pg 66) holding
that there had been no service of notice by
the Prescribed Authority on the Petitioner
or the legal heirs and accordingly the
exparte order dated 02.05.1990 and order
dated 14.02.1992 were set aside. While
allowing the appeal the appellate authority
categorically directed for issuance of
separate notices to the appellants and the
others and to give full opportunity to them
to file objections and lead evidence. The
plea of separation between the family
members had been noted by the Appellate
Authority while issuing the direction and,
therefore, the said objections could not be
ignored.

20. The right of the family members to
file their objections even if their nameswere not entered in the revenue records is
further countenanced by the full bench of
this Court in Upper Ganges Sugar Mills
Ltd. Vs. Civil Judge, Bijnor and Ors.
reported in 1969 RD202, wherein in
paragraph 38, it has been specifically held
that, the fact that even if a tenure holder is
not recorded as such in the revenue records
it will not be relevant for determining
whether he is entitled to file an objection to
the statement prepared under Section 10(1)
of the Act and issued to another person
under Section 10(2) of the Act and the
above fact will not disentitle him to file an
objection if he is otherwise entitled to do
so.

21. It has been mentioned that the
notices to the transferees are stated to have
been sent earlier in 1991 and 1992 that
were
returned
without
service
and
apparently because they were sent to all the
transferees on the same address of the
Petitioner's late father at Allahabad. It is
contended that this service itself was
ridiculous and a mere formality and it is for
the said reason that order was passed on
17.04.1993 (Annexure 4, pg 66) setting
aside
orders
dated
02.05.1990
and
14.02.1992 by the Appellate Authority
directing service of notice afresh on the
petitioner and all others.
488 INDIAN LAW REPORTS ALLAHABAD SERIES

22. It is argued that the said order
dated 17.04.1993 has not complied with
and without referring to the same, the
Prescribed Authority in haste proceeded to
institute
an
altogether
new
ceiling
proceedings against the petitioner being
Ceiling Case No.45 and the surprising
aspect of the matter is that the land which
was made the subject matter of the said
ceiling case was the same land which the
Prescribed Authority had earlier included
vide order dated 4.10.1963 to be surplus
that was quashed as being without
jurisdiction vide judgement and order dated
7.11.1969. In the newly instituted Ceiling
Case no.45 the Prescribed Authority in
haste, recording the despatch of the
previous notices, without issuing any fresh
notice, passed an order on 19th July 1993
(Annexure 16. pg 191), which is impugned
herein whereby 146.06 acres of land of
Village Pipra was declared surplus by
assuming that the transferees appear to be
benami Tenure Holders. The prescribed
authority approved CLH Form 3 as sent by
the sub divisional officer to be correct. The
order has been passed in undue haste and in
clear violation of the principles of natural
justice completely overlooking all the
objections that had been taken as well as
the evidence on record including the order
of the High Court dated 07.11.1969 and the
evidence corroborating the transfers of the
land of village Pipra as discussed in detail
in the order of the Consolidation Officer
dated 09.02.1983.

23. The order does not refer to any law
and as would be evident from the
submissions narrated hereinafter and the
relevant decisions on the issues relied on by
the counsel for the petitioner.

24. The Petitioner filed a recall
application contending that the ceiling cases
could not be proceeded separately as the
original proceedings being proceedings in
Celling
Case
No.
48/18
against
the
Petitioner's late Father pursuant to the notice
dated 21.08.1962 had not been finalised. No
order was passed on this recall application as
a result whereof an appeal being Appeal. No.
102/53/323/70/D-1993 (Annexure SA-13, pg
63) was filed challenging the said order
19.07.1993 and a stay order was passed on
30.08.1993 (Annexure 9. pg 117) which is to
the following effect-

"Heard the learned counsel for the
appellant.

D.G.C.R. appeared for State. Let
the execution of the P.A. be stayed till further
orders. Subject to confirmation by P.O. issue
notice. Fix early date. Call for the records.
Sd/-

Additional Commissioner (J)

GKP 30.08.1993."

25. During the pendency of the Appeal
the
petitioner
had
also
moved other
applications
on
17.02.1995,
28.02.1995
(Annexure 11. pg 121) and 24.03.1995
(Annexure 12, pg 124) before the Prescribed
Authority where the recall application was
pending, again requesting the Prescribed
Authority to consolidate the cases together
and proceed with the matter after notice to all
the tenure holders and after verifying the
correct statement under CLH Form 3. The
applications
dated
17.02.1995
and
28.02.1995 were rejected by the Prescribed
Authority on 28.02.1995 (Annexure 10, pg
119) and application dated 24.03.1995 was
rejected on 31.03.1995 (Annexure 13, pg
127) by the Prescribed Authority who
disposed off all other objections by rejecting
them.
9 All. Rajeshwar Pratap Sahi Vs. Addl. Commissioner Gorakhpur & Ors.
489

26. Three appeals were filed by the
Petitioner. Appeal No. 34/P-1995 against
the order dated 28.02.1995 in reference to
the applications dated 17.02 1995 and
28.02.1995. Appeal No. 113/31/49/P-1995
was
filed
against
the
order
dated
24.03.1995 that were interlocutory orders
referred to hereinabove and Appeal No.
103/48/70/N-1995 (Annexure SA-16, pg
97) was filed against the order dated
31.03.1995.
These
appeals
alongwith
appeal No. 102/53/323/70/D-1993 that was
filed in 1993 against the order of Prescribed
Authority dated 19.07.1993 and were
pending were consolidated and heard
together and was finally disposed of on
7.11.1996 (Annexure SA-15, pg 80).

28. This order of the appellate
authority came to be challenged in Writ
Petition No. 36434 of 1996 before the High
Court which was ultimately allowed vide
judgment dated 21.08.1997 (Annexure 14,
pg 166) setting aside the order of the
Commissioner in appeal and remanding the
matter for fresh consideration alongwith the
observations made therein. Consequently,
the Appeals were restored and were
directed to be decided once again by the
Appellate Authority, categorically holding
that reasonable opportunity had not been
given to the petitioner who was seriously
prejudiced because of his independent right
which he was claiming as a share-holder
and it was further observed that the
transactions of the sale-deeds that have
been effected prior to the relevant date
could not be treated as a sham transaction
in as much as the burden had been wrongly
placed on the Petitioner and it was for the
State to have established the same by
leading cogent evidence.

29. Learned counsel for the petitioner
argued that the Appellate Authority once
again has proceeded to decide the appeal
vide impugned order dated 14-10-2003
(Annexure 15, Pg. 172) recording the
findings that the petitioner is not entitled to
any separate share as claimed by him on
the basis of his date of birth and further the
transfers made in 1961 were in teeth of the
1960 Act that had restrained the transfer
from 20.08.1959 onwards. This order it is
urged was passed without going through
the original records that have been
summoned by the Commissioner himself
vide letter dated 22-24.07.03 (Annexure 17,
pg 196). The matter was heard in the
absence of original records and was
decided accordingly without perusal of the
original
record
which
contained
the
evidence on which reliance has been
placed.

30. It is submitted that the impugned
orders suffer from procedural irregularities,
non-consideration of the relevant material
rendering them perverse and not in
conformity with the legal provisions and
the law, the principles whereof have been
ignored and incorrect findings have been
recorded which are inconsistent with the
weight of evidence on record.

31. It was vehemently urged that the
impact of the first judgment of the High
Court dated 07.11.1969 holding that the
revised statement had proceeded on an
incorrect basis and that the original CLH
Form 3 could not have been revised has
been completely ignored. The second
finding recorded in the Judgment dated
7.11.69 upholding the contention of the
Petitioner
that
the
revenue
records
indicated that the land to be grove has been
completely omitted to be considered in all
the impugned orders. This omission is vital
and seriously prejudicial in as much as the
State had been called upon to respond to
490 INDIAN LAW REPORTS ALLAHABAD SERIES
the said allegation but its failure to do so by
simply swearing an affidavit on personal
knowledge was categorically rejected and
recorded and the conclusion therefore
drawn was that the notice at the initial stage
in CLH Form 3 had been correctly
prepared. The High Court held that the
prescribed authority had no jurisdiction to
issue a fresh notice. It is, therefore, evident
that the Judgment dated 7.11.69 was
binding on clear issues of fact relating to
the nature of the land and holding the
action of the Prescribed Authority to be
without jurisdiction in issuing a fresh
notice and including the land of village
Pipra.

32. It is contended that as per the
Ceiling Act as then existed, under section
6(1) grove was totally exempt and in this
background there was no legal bar for the
transfer of the land that was sold by the
Tenure Holder and the registered saledeeds were executed between 1959 and
1961. The acceptance of the contention of
the Ld. Addl. DGC (Revenue) that the
transfers
have
been
restricted
after
20.08.1959, has, therefore, no substance as
the said contention was accepted ignoring
the aforesaid aspect of the case and the
binding impact of the Judgement dated
7.11.69 that has attained finality.

33. The findings that have been
recorded in treating the transfers to be
benami, the Appellate Authority has
overlooked
the
fact
that
a
benami
transacted property held by a person is one
in respect whereof consideration has been
provided by some other person as held by
the Hon'ble Supreme Court in Smt. Shaifali
Gupta Vs. Smt. Vidyadevi Gupta and
others in SLP (C) No. 4673 of 2023 in
paragraph 26, where it has been specifically
defined as to what would constitute a
benami transaction. To prove the same, no
evidence has been led to that effect except
an allegation that in spite of registered
notices having been sent the purchasers did
not appear before the Prescribed Authority.
This finding on notice of the transferees as
contended is perverse in as much as it is
evident that all the notices were dispatched
to the transferees at the address of the
original tenure holder i.e. the late deceased
father of the Petitioner at his residence at
Allahabad. It is argued that there is no
material to establish nor any evidence was
led by the State that the address of the
transferees was in the city of Allahabad as
reported by the Revenue Officials and
placed on record before the Prescribed
Authority. The Appellate Authority has
completely ignored this aspect and has
based its findings only on the strength of
the order of the Prescribed Authority and
without perusing the records or summoning
them even though the Appellate Authority
itself had sent a letter on 22 / 24.07.2003.

34. The conclusion of the Appellate
Authority that there is clarity in the order of
the Prescribed Authority on this aspect is
absolutely misplaced and contrary to the
facts and evidence on record.

35. In this regard it is argued that what
is further noticeable are the findings on the
evidence relating to the transactions as
recorded by the Consolidation Officer in
the order dated 09.02.83: The Appellate
authority has held that the Order dated
9.02.83 is a decision after the cut-off date
under the Ceiling Act, which is 24.01.1971
and has discarded the impact of the order as
it was delivered after 24.01.71.

36. It was vehemently contested by the
learned counsel for the petitioner that the
Appellate Authority has ignored the fact
9 All. Rajeshwar Pratap Sahi Vs. Addl. Commissioner Gorakhpur & Ors.
491
that
the
dispute
raised
before
the
Consolidation Officer were objections filed
on the basis of revenue entries relating to
1359 fasli (1952) and 1367 fasli (1960).
The objectors had attempted to get these
revenue
entries
(record
of
rights)
interpolated and manipulated and on that
basis had produced revenue extracts
claiming that they were in possession and
therefore, the settlement record should be
corrected
in
their
favour
and
their
objections should be allowed. petitioner's
late father was also a party to the said
proceedings and after contest all objections
were rejected with findings relating to the
evidence and the transfers that were all
prior
24.01.71.
The
order
of
the
Consolidation Officer, therefore, related to
pre-existing facts and evidence prior to
1971. The evidence and the facts relating to
the transfer were crystallised in the
Judgment of the Consolidation Officer that
became final after having entertained the
affidavit of Naib Tehsildar (Ceiling) and
noticing the judgment of the High Court
dated 7.11.69. Consequently, neither the
judgment of the High Court dated 7.11.69
could be ignored nor the entire evidence
corroborating the status of the transferees,
supported by the revenue records and the
entire material that was discussed by the
Consolidation Officer could have been
ignored. Non consideration of this vital
evidence which are all related to the period
prior to 24.01.71 was prejudicial to the
petitioner. Therefore, merely because the
Consolidation Officer had decided the
issues in 1983 the same did not in any way
dissolve or dilute the pre-existing evidence
or even the judgement of the High Court
dated 7.11.69. By omitting to consider the
same the Appellate Authority as well as the
Prescribed Authority in the impugned
orders have arrived at conclusions which
are perverse for non-consideration of
relevant material available on record. A
Judicial review of such orders on the
ground of perversity is clearly permissible
in view of the full bench decision of the
this court in the case of Nanha vs. DDC
(1975 AWC Pg. 1).

37. The submission of the State that
the judgement of the Consolidation Officer
cannot be looked into is further not
acceptable in view of the fact that the
judgement of the Consolidation Officer
does not loses its evidentiary value as has
been held by this Court in the case of
Jhandoo Vs. State of U.P. and others
reported in 1977 (3) ALR 418 specifically
in paragraphs 9 & 11.

38. This Hon'ble Court has gone on to
interpret Section 38-B as added by U.P
Amending Act No. 20 of 1976 in Uma
Shanker Vs. State of U.P. and others
reported in 1980 AWC 487 ALL, wherein
the division has held in paragraphs 10, 11
& 13, that has been relied on by the learned
counsel and is quoted herein below:

10. Hence Section 38-B does not
obliterate all decisions or findings given
by courts of law either under the general
law or under the Consolidation Act from
being
given
effect
to
in
ceiling
proceedings. Section 38-B makes the
provisions of the Ceiling Act to have an
overriding effect and so the findings
which are in conflict or at variance with
the provisions of the Ceiling Act will not
bar retrial of the involved issues in
proceedings under the Ceiling Act. But
otherwise
the
decisions
are
to
be
recognized even in proceedings under the
Ceiling Act. To this effect is the decision
of Gopi Nath, J. in Ramlal v state of Uttar
Pradesh MANU/UP/0636/1978 1978 AWC
713. In that case, the question was
492 INDIAN LAW REPORTS ALLAHABAD SERIES
whether after the coming into force of the
Amending Act No.2 of 1975 and Act
No.20 of 1976 a re-determination of
ceiling area of a tenure holder has to
follow as a matter of course in respect of
cases decided by the Ceiling Authorities or
is it confined to cases affected by
amendments
incorporated
in
those
Amending Acts. It was held that a fresh
notice for re-determination of surplus
land was to issue not in all cases but only
in such of them as were likely to be
affected by amendments.

Section 9 of the Act No.2 of 1975
provided:

Where an order determining the
surplus land in relation to a tenure holder
has been made under the Principal Act,
before the commencement of this Act, the
Prescribed Authority may at any time
within a period of two years from the
commencement of this Act, re-determine
the surplus land in accordance with the
Principal Act as amended by this Act.

11. The learned Judge rightly
pointed out that the re-determination was
to be done in so far as it was required for
the
amendments
introduced
by
the
Amending Act of 1975.

13. The learned Judge observed
that re-determination was required only
when
it
was
necessitated
by
the
amendments made in the Principal Act,
notwithstanding
the
existence
of
a
decision determining the surplus land
either by the Prescribed Authority or in
appeal the learned judge concluded that
the general review of the earlier orders
was not intended by the aforesaid
provisions permitting re-determination.
Only such cases are liable to be reopened
which required re-determination in view
of the amendments incorporated in the
Principal Act. Section 38-B was to be
interpreted in the light of these provisions
of the Amendment Act by which Section 9
of the Act 2 of 1972 was introduced in the
Ceiling Act. Section 38-B facilitated the
re-determination directed to be done by
Section 9 of Act No.2 of 1975 and Section
31 of Act No.20 of 1976, by specifically
providing that the findings or decisions
given before October 10, 1975 shall not
debar the retrial of the issues governed by
the Act as amended."

39. It is argued that the aforesaid law
laid down by this Court has again been
followed in paragraphs 4 & 5 in the case of
Kr. Shiv Mahendra Singh Vs. State of
U.P. and others reported in 1982 ALL.L.J.
106.

40. It has been further argued that in
the facts of the instant case the State has
failed to point out as to whether any
findings or decisions of any authorities or a
court of law as has been relied upon by the
petitioner including the findings of fact
recorded in the order of the Consolidation
Officer dated 9.2.1983 are contrary to any
of the amendments made in the Principal
Act which would warrant a retrial of the
same, therefore as per the law laid down by
this Court in Ram Lal Vs. State of U.P.
and others reported in 1978 AWC 713
ALL in paragraphs 19, 20 & 21, the ceiling
authorities were not justified in ignoring
the decisions rendered by competent courts
or authorities in respect of matters which
were not affected by the changes made in
the Principal Act.

41. It is further pointed out that the
State has not denied nor has it controverted
the findings returned in the order of the
9 All. Rajeshwar Pratap Sahi Vs. Addl. Commissioner Gorakhpur & Ors.
493
Consolidation Officer or the order itself,
therefore the law laid down by the Division
Bench of this Court in Rajendra Prasad
Vs. State of U.P. and others reported in
1978 AWC 657 ALL in paragraph 10
would also squarely cover the case of the
petitioner in as much as the revenue entries
made
under
Section
49
of
U.P.
Consolidation of Holdings Act would be
final as the consolidation order has
remained unrebutted in the petitioner's
case.

42. Apart from the above, as has been
argued earlier and has been reiterated that
as is evident from the order of the
Consolidation Officer dated 9.2.1983 itself.
the Naib Tehsildar Ceiling had also
participated
in
the
consolidation
proceedings,
therefore
the
celling
authorities were unjustified in ignoring the
findings of fact returned in the order of the
Consolidation Officer that too without
providing any reason on the basis of any
material evidence available on record that
the said findings were in any way contrary
to the amendments made in the ceiling law
or were perverse.

43. There is yet another legal aspect
that has been urged which directly answers
the issues raised particularly regarding the
cut-off date of 24.01.1971 and any transfers
made prior to the said date. Reference was
made to the Judgment of the Apex Court in
the case of Ram Adhar Singh vs.
Prescribed Authority and Ors. 1994
(Supp.) (3) SCC Pg. 702.

44.