Awadhesh Kumar Singh And Others vs Addl.Commissioner And Another
2023 Latest Caselaw 14791 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Neutral Citation No. - 2023:AHC:101588
 
Court No. - 9
 

 
Case :- WRIT - C No. - 30465 of 2000
 

 
Petitioner :- Awadhesh Kumar Singh And Others
 
Respondent :- Addl.Commissioner And Another
 
Counsel for Petitioner :- R.S.Maurya,O.P.Misra,R.K.Singh,Virendra Prakash
 
Counsel for Respondent :- C.S.C.,Virendra Prakash
 

 
Hon'ble Alok Mathur,J.

1. Heard Sri Alok Kumar Yadav holding brief of Sri Virendra Prakash for the petitioners and learned Standing counsel for the respondents.

2. By means of the present writ petition the petitioners have assailed the order of Additional Commissioner (Judicial), Jhansi Division, Jhansi dated 19.6.2000 whereby he has remanded the matter to the Prescribed Authority for adjudication.

3. It has been submitted by learned counsel for the petitioners that the proceedings under Section 10 (2) of U.P. Imposition of Ceiling on Land Holdings Act, 1960 were initiated against ancestors of the petitioners and notice under Section 9 was issued to them with regard to three khatas measuring 85.48 acres in the name of Arjun Singh and Sitaram Singh. It is stated that notices were issued only to Arjun Singh (father of petitioner No.1) and only half of the khatas has been shown to belong to him. The notice which was issued contained entire plot of these khatas indicating that the same belongs to him. There was a fourth khata about 12 acres which was exclusively recorded in the name of Sitaram Singh- brother of Arjun Singh and this khata was not included in the notice and on the basis of the report submitted by the Lekhpal notices were issued to the tenure holder under Section 9 of U.P. Imposition of Ceiling on Land Holdings Act, 1960 which was contested by the the petitioners at all the stages and objections were filed before the prescribed authority and the matter was finalized under Section 10 of the Act of 1960 against which the tenure holders had preferred an appeal which was dismissed on 1.8.1977.

4. A writ petition was preferred before this Court being Writ Petition No.8350 of 1988 which was decided on 13.10.1995 and the matter was remanded to the appellate authority to decide the appeal afresh after affording opportunity of hearing to the petitioners. While passing the order of remand this Court had considered the arguments raised by the petitioners that the dispute which needs to be resolved is with regard to facts as to whether the land in dispute was ancestral sir and whether Awadhesh Kumar was born before the date of vesting. The Court further noticed that Arjun Singh the tenure holder was ancestral sir and as to whether Awadhesh Kumar was born before the date of vesting and if so he would have a share in the property and that would make a difference in existence of surplus land concerned. This aspect was duly considered by this Court and it was of the considered view that a finding deserves to be recorded by the authorities below and hence the appellate authority was directed to decide the appeal afresh. In pursuance of the directions of this Court dated 13.10.1995 the appellate authority after hearing the petitioners has further remanded the matter to the prescribed authority on limited question as discussed by this Court.

5. The grievance of the petitioners is that by means of the impugned order dated 19.6.2000 passed by Additional Commissioner, Jhansi Division, Jhansi, the other issues raised by the petitioners have not been remanded back and, hence, it would cause injustice and in any view of the matter the said remand order is contrary to the directions issued by this Court by means of order dated 13.10.1995. He submits that High Court had remanded the entire appeal to the appellate authority and restricted the same to the issues which has been considered by this Court. He submits that a bare perusal of the judgment and order dated 13.10.1995 would make it abundantly clear that it was a remand and there was no limitation passed upon the appellate authority to consider only certain issues rather than the entire appeal preferred by the petitioners.

6. Learned Standing counsel, on the other hand, has opposed the writ petition and submits that a perusal of the impugned order would indicate that under the garb of remand the petitioners have sought to place fresh material before the appellate authority and was seeking to decide all the issues which was not ever raised before the prescribed authority and was raised by him for the first time before the appellate authority and such a jurisdiction is not vested in the appellate authority and, hence, supported the impugned orders stating that there is no infirmity in the same.d

7. I have heard learned counsel for the parties and perused the record.

8. The only dispute in the present case is with regard to the impugned orders as to whether only selected disputed issues relating to whether Awadhesh Kumar was born before the date of vesting and whether he would have a share in the property as has been remanded to the prescribed authority rather than all the other issues including the fact that the consolidation operations had taken place on the said land, whether the said land was irrigated or un-irrigated and whether transfer was made prior to 1959. In the said matter the entire controversy has arisen subsequent to the judgment and order of this Court and remand order dated 13.10.1995 passed in writ petition No.8350 of 1988. By the said judgments this Court had clearly recorded that essential facts necessary for adjudication of the said dispute specially pertaining to the fact as to whether Awadhesh Kumar Singh was born prior to the date of vesting or not is a dispute which deserves to be decided before arriving at any conclusion with regard to surplus land. While remanding the said dispute to the appellate authority this Court did not limit the issues to be determined by the appellate authority rather it directed the appellate authority to decide the appeal afresh.

9. A bare perusal of the judgment and order of this Court leaves no doubt for interpretation than the issues recorded hereinabove. It is the appellate authority to whom the matter was remanded limited the further issues to the prescribed authority only on specific issues relating to Awadhesh Kumar Singh. Clearly the appellate authority fell in error while further remanding the matter to the prescribed authority. It is such a nature as has been presented in the present writ petition that the controversy/other issues would be relevant for looking into the fact as to whether limitation was prescribed or not or whether the transfer of the land took place prior to 1995 or not and as to whether what was the effect of operation of the consolation on the said land. This Court was of the considered view that there was no need or necessity to remand the matter to the prescribed authority on the limited question as contained in the impugned order dated 29th June, 2000. It is true that no fresh facts can be brought up in an appeal and the appellate authority would be confined to the issues which have been decided by the prescribed authority and all the facts which are recorded by the prescribed authority as per the procedure prescribed after taking due evidence. Accordingly, the petitioners would be at liberty to raise all the issues which have been taken in the appeals originally filed before the appellate authority prior to the order of remand passed by this Court.

9. Accordingly, the prescribed authority is directed to decide the matter afresh on the grounds contained in Appeal No.58/145/144/21 1985-86 (Ashok Kumar Singh Vs. State), Appeal No.54/141/106/19 (Awadhesh Kumar Singh Vs. State) and Appeal No.57/144/143/105 (Ram Kumar Singh Vs. State).

10. Learned Standing counsel also does not dispute the fact that whatever the grounds which have been taken originally may be decided by the prescribed authority while deciding the appeal remanded by him as per the order of the prescribed authority.

11. In light of the above, remand order dated 19.6.2000 is suitably modified and the prescribed authority shall proceed afresh in the matter and the petitioners, as directed hereinabove, would be at liberty to take all the pleas which have been taken by them in aforesaid appeals. It is further made clear that no fresh ground shall be raised before the prescribed authority not contained in aforesaid appeals.

12. The writ petition stands partly allowed.

Order Date :- 11.5.2023 (Alok Mathur, J.)

RKM.