Allahabad High Court
Smt.Vidya Devi vs State Of U.P. And Others on 8 October, 2025
Author: Irshad Ali
Bench: Irshad Ali
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Neutral Citation No. - 2025:AHC-LKO:61834
Reserved on :10.7.2025
Delivered on :8.10.2025
HIGH COURT OF JUDICATURE AT ALLAHABAD
LUCKNOW
WRIT C No. - 30000076 of 1997
Smt. Vidya Devi
..Petitioners(s)
Versus
State of U.P. & others
..Respondents(s)
Counsel for Petitioners(s)
:
Umeshwar Prasad Srivastav, Ankit Pande, Ashok Kumar Mishra, Devendra Mohan Shukla, Dhruv Mathur, Virendra Bhatt
Counsel for Respondent(s)
:
C.S.C., Ajeet Kumar
Court No. - 4
HONBLE IRSHAD ALI, J.
1. Heard Dr. R.S. Pande, learned Senior Advocate assisted by Sri Ankit Pandey, learned counsel for the petitioners and learned Standing Counsel for the State-respondent.
2. By means of the present writ petition, the petitioners have prayed as under :-
"i) to issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 9.12.1996 (Annexure-1) passed by the Additional Commissioner (Administration) Faizabad, order dated 28.9.1988 (Annexure No.2) passed by the Prescribed Authority (Ceiling) Barabanki;
ii) to issue a writ, order or direction in the nature of mandamus commanding the opposite parties to comply with the direction contained in the order dated 12.4.1978 passed by the Hon'ble High Court in writ petition No.1873 of 1975 as confirmed by the Hon'ble Supreme Court;
iii) to issue a writ, order or direction in the nature of Mandamus commanding the opposite parties not to give effect to the impugned orders during the pendency of the writ petition.
iv) ...
v) ..."
3. The proceedings in the present matter trace their origin to a notice issued under Section 10(2) of the U.P. Imposition of Ceiling on Land Holdings Act to the original tenure-holder, Smt. Sundari Devi. In response to the said notice, an ex-parte order was initially passed on 13.07.1962. However, upon filing of objection by the tenure-holder, the order was recalled on 28.02.1963, and the matter proceeded contested.
4. Pursuant thereto, the prescribed authority, by order dated 18.09.1963, declared 19.32 acres of land situate in village Haraura as surplus. Consequent directions were issued to the consolidation authorities to record the said area as government land in the relevant records.
5. In the interregnum, between the years 19701971, one Utpal Mishra instituted a partition suit under Section 176 of the U.P. Zamindari Abolition and Land Reforms Act, without disclosing the fact that the land had already been declared surplus. The suit proceeded, and a preliminary decree was passed on 30.12.1971, followed by a final decree dated 07.01.1972. It is of significance that in those proceedings the State of U.P. was not impleaded as a party.
6. Meanwhile, on 17.02.1975, the prescribed authority passed an order directing that the surplus land be recorded in Class 4kh of ceiling land and that possession thereof be taken over by the State. The said order was subjected to challenge by the petitioners through Writ Petition No.1837 of 1975 before this Court. By judgment and order dated 12.04.1978, the writ petition was allowed and the prescribed authority was directed to afford the petitioners a proper opportunity to exercise their choice as contemplated under the Act, and to also consider any deductions claimed by them, after due hearing.
7. In compliance with the said directions, the prescribed authority issued repeated notices requiring the petitioners to exercise their option and to produce documentary evidence regarding their claim, particularly with reference to consolidation proceedings. Despite such opportunities, the petitioners neither exercised their choice nor furnished adequate evidence of consolidation. Eventually, by order dated 28.09.1988, the prescribed authority directed that the surplus area be recorded in the revenue records accordingly.
8. Aggrieved thereby, the petitioners preferred an appeal, which came to be dismissed by the Additional Commissioner, Lucknow, on 09.12.1996. The dismissal of the appeal has led to the filing of the present writ petition.
9. Learned counsel appearing for the petitioners has submitted that in terms of Section 5 of the U.P. Imposition of Ceiling on Land Holdings Act, all transfers or alienations of land effected after 24.01.1971 are to be ignored for purposes of ceiling determination. In the present case, the land had already been declared surplus by order dated 18.09.1963, much prior to the institution of the partition suit of 1971. Consequently, the preliminary decree dated 30.12.1971 and the final decree dated 01.07.1972, having been rendered in proceedings to which the State was not a party and concerning land already vested in the State, are void ab initio and cannot confer any legal rights upon the petitioners.
10. It is contended that while this Court, by its order dated 12.04.1978 in Writ Petition No.1837 of 1975, directed the prescribed authority to afford the petitioners a proper opportunity to exercise their statutory choice for retention of land and to consider any claim of deduction after hearing, the prescribed authority failed to comply with such directions in letter and spirit. Although the petitioners sought time and did place certain documentary evidence on record, no meaningful opportunity was granted to them for substantiating their claim regarding reduction in area. The impugned order dated 28.09.1988 thus stands vitiated for failure to adhere to the mandate of this Court.
11. It is further submitted that despite the order of the prescribed authority dated 18.09.1963, whereby 19.32 acres were declared surplus and directions were issued for its entry in government records, the consolidation authorities did not carry out such entry. This omission is contrary to Section 11-C of the U.P. Consolidation of Holdings Act, 1953, which obliges recording of surplus land as State property. The petitioners contend that such failure on part of the consolidation authorities has created unnecessary confusion, though in law the land stood vested in the State upon declaration of surplus, leaving no subsisting rights with the petitioners.
12. Learned counsel for the petitioners submits that in accordance with the judgment and order dated 12.4.1978, passed in Writ Petition No.1837 of 1975 and the law laid down in the case of Jhandoo Vs. The State of U.P. and others [1977 AWC 318] and Satya Pal Singh Vs. The State of U.P. and others [AWC 1979-217 (DB)], the petitioners were entitled to the benefit of reduction of area due to proceedings under the Consolidation of Holdings Act and the prescribed authority should have taken its account and calculated the ceiling area and the surplus land on that basis and the same having not been done, the respondents have committed gross error of law and jurisdiction.
13. It is next submitted that the respondent Nos.2 and 3 ignored the fact that the petitioners held a total land of 121 bigha, 14 biswa and 15 biswansi, out of which an area of 38 bigha 15 biswa and 5 biswansi was out of consolidation and a total of 82 bigha 19 biswa and 10 biswansi land was within the consolidation operations, against which the petitioners were allotted an area of 68 bigha 8 biswa and 16 biswansi and thus an area of 14 bigha 10 biswa and 14 biswansi was reduced in consolidation and deducting the area of 14 bigha 10 biswa and 14 biswansi reduced in consolidation, a total of 107 bigha 4 biswa and 1 biswansi was held by the petitioners, which should have taken for determination of ceiling area and surplus land of the petitioners and after exemption of an area of 18.19 ares as grove land under Section 6 of the Act an area of 40 acres fair quality land, both totaling to almost 93 bighas 2 biswa and 2 biswansi, an area of 14 bigha 1 biswa and 19 biswansi was liable to be declared surplus as per the law laid down in the rulings mentioned above, whereas the respondents have declared a total of 19.32 acres (almost 30 bigha 19 biswa and 5 biswansi) as surplus land and have thus, deprived the petitioners their valuable right in respect of almost 16 bigha 16 biswa and 6 biswansi of land otherwise than in accordance with law.
14. In support of his submission, learned counsel for the petitioners has placed reliance upon the following judgments :-
(i) Satya Pal Singh Vs. The State of Uttar Pradesh & others [AWC 1979-217 (DB)]. Relevant paragraphs 2 to 5 are being quoted below :-
"2. In Jhandoo v. State of Uttar Pradesh, 1977 AWC 318, a learned single Judge held that the prescribed authority has to determine that a tenure holder did not hold any land in excess of the ceiling area after June 8, 1973. It was incumbent upon them to take notice of the events that may have happened subsequently, for instance, under the Consolidation of Holdings Act and to give effect to the reduction in area caused thereby in a tenure-holders holding. In other words, it was held that if the area of the tenure-holder is reduced as a result of the proceedings under the U.P. Consolidation of Holdings Act, then the ceiling authorities should take that into account and calculate the ceiling area in the surplus land on that basis.
3. Another learned single Judge felt that these observations in Jhandoo's case, 1977 AWC 318, (supra) were rather too wide. He mentioned in the referring order an illustration that the reduction in area may be as a result of the valuation made under the U.P. Consolidation of Holdings Act because of which the tenure-holder may be entitled to a lesser area than originally held by him. In such a case, the variation will be more apparent than real and so there can be no justification for making allowance in such a case. In this case also, the reduction in area took place as a result of valuation of the land originally held by the Petitioner and of the land subsequently allotted to him. It appears that higher valuation land was allotted to the Petitioner and so the area obtained by him was lesser.
4. This result is due to operation of law. The proceedings under the Consolidation of Holdings Act are based upon the system of valuation of land prescribed by that Act. The proceedings under the Ceiling Act are founded on area. The system of valuation provided by the Consolidation of Holdings Act is not recognized by the Ceiling Act for determining the ceiling area as prescribed by the Ceiling Act. The method of calculation given in the Ceiling Act alone has to be followed. The burden of the Ceiling Act is that after June 8, 1973 no tenure holder should continue to possess more than the ceiling area. Under Section 29 of the Ceiling Act, there is a specific provision for adjustment of ceiling area in case the tenure-holder acquires some more land. It is implicit in the provision that if because of operation of law the tenure-holders holding gets reduced, that also should be taken into account. The reduction must be one which is valid in law. Section 38B of the U.P. Imposition of Ceiling on Land Holdings Act, 1960 provides:
No finding or decision given before the commencement of this section in any proceeding or on any issue (including any order, decree or judgment) by any court, tribunal or authority in respect of any matter governed by this Act, shall bar the re-trial of such proceeding or issue under this Act, in accordance with the provisions of this Act as amended from time to time.
A finding or decision given, before Section 38B came into force on October 10, 1975 (the date of enforcement of U.P. Ordinance No. XXXI of 1975) are, for purposes of Ceiling Act, not final. They can be reopened and the question involved in it, retried. But, in a case where no retrial takes place, the finding or decision is binding. Further, Section 38B implies-that findings or decisions given in any proceeding in any court, tribunal or authority will be binding upon the authorities under Ceiling Act, if they are given after October 10, 1975. This clearly leads to the conclusion that the decisions of the authorities under the U.P. Consolidation of Holdings Act are valid and are to be recognised in proceedings under the Ceiling Act, subject of course, to the effect of Section 38B as explained above. In this view, it is evident that Prescribed Authority under the Ceiling Act while determining the ceiling area of a tenure-holder cannot shut its eye or ignore the decisions given in proceedings under the Consolidation of Holdings Act.
5. Learned Counsel invited our attention to a Full Bench of this Court in Ram Charan v. State of U.P., 1978 AWC 677: (1978) 1 All LR 819. At the end of judgment, an illustration with reference to Section 29 of the Ceiling Act was dealt with. But that has no bearing upon the position as obtaining in the present case. The Full Bench was concerned with the reverse case, namely, where consolidation proceedings commenced after the completion of the proceedings under the Ceiling Act. Here, we are concerned with the problem of Ceiling Act proceedings commencing while consolidation proceedings are going on and before the completion of proceedings under the Ceiling Act, final orders had been passed under the Consolidation of Holdings Act. This position is not dealt with in the aforesaid decision."
(ii) Sri Pal Singh Vs. D.J. Banda and others [2011(1) ADJ 798]. Relevant paragraphs 11 and 12 are being quoted below :-
"11. At this stage counsel for the petitioner submitted that certain area of the tenure holding of the Petitioner has been reduced due to consolidation operation. Therefore, benefit of such reduction in area be provided to the Petitioner and for the proposition he has placed reliance upon the judgment of the Division Bench of this Court in the case of Satya Pal Singh v. The State of Uttar Pradesh and others, 1979 AWC 217.
12. I am of the considered opinion that if there has been any such reduction in the area qua the land holding of the Petitioner, and that possession of the surplus land has yet not been taken, the Petitioner may be provided benefit of such reduction in area only to the extent whereof the land has been so reduced because of (a) better quality of land being provided to the Petitioner, (b) the land drawn for the public purpose and (c) for improving the cultivatory facilities only. For the purpose the Petitioner is at liberty to make an application before the Prescribed Authority. No other issue shall be considered by the Prescribed Authority. All consequential action shall be taken preferably within two months thereafter."
(iii) Anand Kishor Devacharaya Vs. State of U.P. and others [2024 (165) RD 582]. Relevant paragraphs 13, 14, 19 to 22 are being quoted below :-
"13. The Appellate court held that the old Ceiling Act came into force with effect from 03.01.1961 with reference year 1958. As proceedings against Maharaja Pateshwari Prasad Singh and his heir Maharajaa Dharmendra Pratap Singh had been instituted under the old Ceiling Act, they will be governed by the old Ceiling Act.
14. The order dated 27.01.1968 for recording the name of the appellant's husband, had been passed by the Consolidation Officer on the basis of a compromise and this order had been passed 10 years after the reference date. Therefore, the order dated 27.01.1968 passed by the Consolidation Officer is liable to be neglected and no relief can be granted to the appellant on the basis of the aforesaid order.
19. In view of the provisions contained in Section 19(1) of the Amendment Act, 1972, all the proceedings initiated under the unamended Act stood abated on 08.06.1973. The Prescribed Authority could have initiated fresh proceedings by issuing a notice under Section 9 (2) of the Act.
20. Therefore, the proceedings instituted on the basis of notice issued to Maharaja Dharmendra Pratap Singh, stood abated in view of the provisions contained in Section 19 of the amendment Act. Fresh proceedings could only be initiated by issuing a fresh notice under Section 9 (2) of the Ceiling Act, which was not done in the present case.
21. The order passed by the Appellate Authority stating that the proceedings against Maharaja Pateshwari Prasad Singh and his heir Maharaja Dharmendra Pratap Singh had been issued under the old Ceiling Act (which is a misnomer, as there was no old Ceiling Act and it was merely the unamended Ceiling Act, as it was originally enacted) and that the same proceedings shall be deemed to be continuing, has been passed in ignorance of the provisions of Section 19 of the U.P. Imposition of Ceiling on Land Holdings (Amendment) Act, 1972 (U.P. Act 18 of 1973) and the same is unsustainable in law.
22. Accordingly, the writ petition is allowed. The order dated 15.04.2015 passed by Additional Commissioner (Judicial), Devi Patan Division, Gonda dismissing Appeal No.5/43 under Section 13 of the Ceiling Act is quashed. The matter is remanded to Additional Commissioner (Judicial), Devi Patan Division, Gonda for being decided afresh in accordance with the law, keeping in view the observations made in this judgment."
(iv) Mohd. Raza Vs. State of U.P. and others [2024 (165) RD 783]. Relevant paragraphs 11, 12, 16 to 18 are being quoted below :-
"11. Perusal of the record demonstrates that the petitioner is claiming right on the basis of sale deed executed in his favour on 8.10.1971 in respect to the khasara no.53 area 2-17-15 from its recorded tenure holder Beni Madhav and the name of the petitioner was ordered to be recorded in case no.329 passed by the Sub-Divisional Office, Dumeriyaganj. Entry has been made in the remark column of the khatauni of 1378-1380 fasli. Petitioner is claiming that after enforcement of Act No.18 of 1973 w.e.f. 8.6.1973, the sale deed executed on 8.10.1971 in favour of the petitioner is well protected. The record also demonstrates that the objection under Section 11 (2) of the Ceiling Act filed by the petitioner has been dismissed by the prescribed authority and the appeal has also been dismissed holding that transaction of the petitioner is benami and no reliance can be placed upon the same as the same has been executed after 24.1.1971. The reasoning given under the impugned order cannot be sustained as the sale deed has been executed before 8.6.1973, as such, the same is well protected.
12. In the instant matter petitioner is claiming right on the basis of sale deed executed on 8.10.1971 by recorded owner, which is well before the relevant dated 8.6.1973 and notice was issued to respondent nos.16 to 18 on 14.3.1974 for show cause in C.L.H. Form- 3A, 3B & 3C, as such, the sale deed executed on 8.10.1971 cannot be ignored by ceiling authorities coupled with the fact that name of the petitioner came in remark coloumn of Khatauni of 1378 fasli to 1380 fasli (1970-71 to 1972-73).
16. So far as the execution of the lease in favour of respondent nos.5 to 15 is concerned, the same is always subject to the right & title of the State. Since, the Court is holding that the khasara no.53, which was purchased by the petitioner by way of sale deed executed on 8.10.1971 cannot be declared surplus without notice and opportunity of hearing to the petitioner, as such, respondent nos.5 to 15 cannot claim any right on the basis of lease deed. No useful purpose will be served by remanding the matter again before the prescribed authority or the appellate authority as earlier also the matter has been remanded by this Court to decide the appeal afresh. The litigation cannot be kept pending in Court for unlimited period rather to finalize the same on the basis of evidence on record as well as considering the ratio of law laid down by this Court as quoted above.
17. Considering the entire facts and circumstances of the case, the impugned order dated 6.3.1982 passed by respondent no.3 as well as order dated 19.1.2012 passed by respondent no.2 are liable to be set aside and the same are hereby set aside. The impugned order dated 11.12.1974 so far as it relates to Khasara No.53 is also set aside and Khasara No.53 is excluded from ceiling proceeding.
18. The writ petition stands allowed."
(v) Rajendra Prasad Singh Vs. State of U.P. and others [2024 (42) LCD 2281]. Relevant paragraphs 15, 16 and 17 are being quoted below :-
"15. The prescribed authority, without framing the issues, as directed by the appellate court under Section 5(6) Explanation, proceeded to decide without framing the issues. For ready reference Section 5(6) Explanation proviso to U.P. Imposition of Ceiling on Land Holding Act, 1960 is being quoted under :-
"5(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:
Provided that nothing in this sub-section shall apply to :
(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 instrument not being a benami transaction or for immediate or deferred benefit of the tenure-holder or other members of his family."
16. A bare perusal of the aforesaid provision clearly demonstrates that before proceeding to decide the claim, issue has to be framed in regard to the possession over the land. On bare perusal of the impugned order passed by the prescribed authority, it is crystal clear that no issues whatsoever were framed nor the petitioners were issued notice to submit their objection in regard to their claim. The appellate authority also proceeded to affirm the order of the prescribed authority without application of mind.
17. In view of the reasons assigned above, the impugned orders dated 31.12.1991 and 14.3.1995, passed by the Chief Revenue Officer, Gonda and Additional Commissioner Faizabad Division, Faizabad (Ayodhya) respectively are hereby quashed. The writ petition succeeds and is allowed."
(vi) State of U.P. Vs. Kailash Nath and others [2023 (41) LCD 1170]. Relevant paragraphs 20, 21, 22, 24, 29, 35, 37 and 38 are being quoted below :-
"20. At the outset, it may be noticed that Sections 37 and 38 of the U.P. Imposition of Ceiling on Land Holdings Act, 1960 clearly makes provisions of the CPC applicable by reference. The aforesaid sections read as under:-
"37. Powers of officers and authorities in hearing and disposal of objections and procedure to be followed- Any officer or authority holding an enquiry or hearing an objection under this Act, shall, insofar as it may be applicable, have all the powers and privileges of a Civil Court, and follow the procedure laid down in the Code of Civil Procedure, 1908, for the trial and disposal of suits relating to immovable property.
38. Powers of the appellate Court and the procedure to be followed by it- (1) In hearing and deciding an appeal under this Act, the appellate Court shall have all the powers and the privileges of a Civil Court and follow the procedure for the hearing and disposal of appeals laid down in the Code of Civil Procedure, 1908.
(2) Where, under the provisions of this Act, an appeal has to be heard by the [Commissioner], he may either hear the appeal himself or transfer it for hearing to any[Additional Commissioner] subordinate to him.
21. In view of the aforesaid, it will be relevant to notice that the Appellate Authority was obliged to have considered the appeal in the manner as provided under the Code of Civil Procedure. It will be appropriate to notice Order 41 Rule 31 CPC which reads as under:-
"31. Contents, date and signature of judgment- The judgment of the Appellate Court shall be in writing and shall state-
(a) the points for determination;
(b) the decision thereon;
(c) the reasons for the decision; and
(d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled;
and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein."
22. In this context, since the Appellate Authority is exercising powers of the First Appellate Court it was incumbent upon the said court to have considered the various contentions, the evidence on record and then gone on to record its conclusion. In this regard the decision of the Apex Court in the case of Sudarsan Puhan Vs. Jayanta Ku. Mohanty and others reported in (2018) 10 SCC page 552 will be gainful to notice and the relevant portion reads as under:-
"23. This Court also in various cases reiterated the aforesaid principle and laid down the powers of the Appellate Court under Section 96 of the Code while deciding the first appeal.
24. We consider it apposite to refer to some of the decisions.
25. In Santosh Hazari vs. Purushottam Tiwari (Deceased) by L.Rs. (2001) 3 SCC 179, this Court held (at pages 188189) as under:
"15...The appellate court has jurisdiction to reverse or affirm the findings of the trial court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court......while reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it"
26. The above view was followed by a three Judge Bench decision of this Court in Madhukar & Ors. v. Sangram & Ors.,(2001) 4 SCC 756, wherein it was reiterated that sitting as a court of first appeal, it is the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings.
27. In H.K.N. Swami v. Irshad Basith,(2005) 10 SCC 243, this Court (at p. 244) stated as under: (SCC para 3)
"3. The first appeal has to be decided on facts as well as on law. In the first appeal parties have the right to be heard both on questions of law as also on facts and the first appellate court is required to address itself to all issues and decide the case by giving reasons. Unfortunately, the High Court, in the present case has not recorded any finding either on facts or on law. Sitting as the first appellate court it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording the finding regarding title."
28. Again in Jagannath v. Arulappa & Anr., (2005) 12 SCC 303, while considering the scope of Section 96 of the Code, this Court (at pp. 30304) observed as follows: (SCC para 2)
"2. A court of first appeal can reappreciate the entire evidence and come to a different conclusion."
29. Again in B.V Nagesh & Anr. vs. H.V. Sreenivasa Murthy, (2010) 13 SCC 530, this Court taking note of all the earlier judgments of this court reiterated the aforementioned principle with these words:
"3. How the regular first appeal is to be disposed of by the appellate court/High Court has been considered by this Court in various decisions. Order 41 CPC deals with appeals from original decrees. Among the various rules, Rule 31 mandates that the judgment of the appellate court shall state:
(a) the points for determination;
(b) the decision thereon;
(c) the reasons for the decision; and
(d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled.
4. The appellate court has jurisdiction to reverse or affirm the findings of the trial court. The first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. Sitting as a court of first appeal, it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings. The first appeal is a valuable right and the parties have a right to be heard both on questions of law and on facts and the judgment in the first appeal must address itself to all the issues of law and fact and decide it by giving reasons in support of the findings. (Vide Santosh Hazari v. Purushottam Tiwari, (2001) 3 SCC 179 at p. 188, para 15 and Madhukar v. Sangram, (2001) 4 SCC 756 at p. 758, para 5.)
5. In view of the above salutary principles, on going through the impugned judgment, we feel that the High Court has failed to discharge the obligation placed on it as a first appellate court. In our view, the judgment under appeal is cryptic and none of the relevant aspects have even been noticed. The appeal has been decided in an unsatisfactory manner. Our careful perusal of the judgment in the regular first appeal shows that it falls short of considerations which are expected from the court of first appeal. Accordingly, without going into the merits of the claim of both parties, we set aside the impugned judgment and decree of the High Court and remand the regular first appeal to the High Court for its fresh disposal in accordance with law."
30. The aforementioned cases were relied upon by this Court while reiterating the same principle in State Bank of India & Anr. vs. Emmsons International Ltd. & Anr., (2011) 12 SCC 174 and Uttar Pradesh State Road Transport Corporation vs. Mamta & Ors. (2016) 4 SCC 172."
24. Even the counsel for the private respondent could not dispute the fact that neither the evidence led before the Prescribed Authority was noticed nor the findings recorded by the Prescribed Authority have been touched or noticed and reversed. Thus to the aforesaid extent, the submission of the counsel for the petitioner has force and this Court finds itself in agreement with it.
29. It will also be relevant to notice that the finding which has been reversed by the Appellate Court in respect of the sale deed said to have been executed by Dinanath in favour of Sundar Lal, the same is not adequately considered nor supported with reasons. Whether the said sale deed was executed prior to 24.01.1971 or thereafter could only be proved once the said sale deed was on record. In absence of the said sale deed merely relying upon certain entries in the revenue records which do not establish title and are only for fiscal purposes could not give rise to a categorical finding and conclusion that since the name of Sundar Lal was recorded in the revenue records prior to the said date of 24.01.1971 without clear dates being available as to when it was entered in the revenue records and what was the basis and the reason for incorporating such entries. The findings of the Appellate Court on the aforesaid point are not supported by any clear and cogent evidence, hence are unsustainable.
35. This being the position, once a transfer is shown to be bona fide and further satisfies all the other positive and negative conditions laid down in the proviso (b) to Section 5(6), there is no justification in law to stretch the legal fiction further and to spell out from the expression "good faith" an additional requirement of proving pressing necessity for the transfer before the tenure holder is entitled to the benefit of the aforesaid proviso (b).
37. Now noticing the aforesaid dictum in Amar Singh (supra), Nawal Singh (supra) and Brijendra Singh (supra) and applying the said principles to the instant case, this Court finds that the Appellate Court has not adhered to the principles of law settled and also the manner in which the objections of the tenure holder and the evidence thereon is to be considered. Moreover, categorical findings which have been recorded by the Prescribed Authority have not been considered by the Appellate Court in its correct prespective nor any reason has been incorporated why the conclusion of the Prescribed Authority were erroneous nor the findings of the Prescribed Authority have been reversed.
38. In view of the aforesaid discussions, this Court has no hesitation to hold that the impugned judgment passed by the Appellate Court dated 27.11.1979 cannot sustain judicial scrutiny and is liable to be set aside."
15. On the aforesaid grounds, it is submitted that the orders of the prescribed authority dated 28.09.1988 and that of the Additional Commissioner dated 09.12.1996 are unsustainable and liable to be set aside.
16. Having heard the submission advanced by learned counsel for the parties, I perused the material on record as well as the law reports cited by petitioners' counsel.
17. The proceedings trace their origin to a notice issued under Section 10(2) of the U.P. Imposition of Ceiling on Land Holdings Act to the original tenure-holder, Smt. Sundari Devi. In response to the said notice, an ex-parte order was initially passed on 13.07.1962, however, upon filing of objection by the tenure-holder, the order was recalled on 28.02.1963, and the matter proceeded contested.
18. The prescribed authority, by order dated 18.09.1963, declared 19.32 acres of land situate in village Haraura as surplus. Consequent thereupon, directions were issued to the consolidation authorities to record the said area as government land in the relevant records.
19. Between the years 19701971, one Utpal Mishra instituted a partition suit under Section 176 of the U.P. Zamindari Abolition and Land Reforms Act, without disclosing the fact that the land had already been declared surplus. The suit proceeded, and a preliminary decree was passed on 30.12.1971, followed by a final decree dated 07.01.1972. It is relevant to note that in those proceedings, the State of U.P. was not impleaded as a party.
20. The prescribed authority passed an order, directing that the surplus land be recorded in Class 4kh of ceiling land and that possession thereof be taken over by the State. The said order was subjected to challenge by the petitioners through Writ Petition No.1837 of 1975 before this Court. Vide judgment and order dated 12.04.1978, the writ petition was allowed and the prescribed authority was directed to afford the petitioners a proper opportunity to exercise their choice as contemplated under the Act, and to also consider any deductions claimed by them, after due hearing.
21. In compliance with the said directions, the prescribed authority issued repeated notices requiring the petitioners to exercise their option and to produce documentary evidence regarding their claim, particularly with reference to consolidation proceedings. Despite such opportunities, the petitioners neither exercised their choice nor furnished adequate evidence of consolidation. Eventually, by order dated 28.09.1988, the prescribed authority directed that the surplus area be recorded in the revenue records accordingly. Feeling aggrieved, the petitioners preferred an appeal, which came to be dismissed by the Additional Commissioner, Lucknow, on 09.12.1996.
22. In terms of Section 5 of the U.P. Imposition of Ceiling on Land Holdings Act, all transfers or alienations of land effected after 24.01.1971 are to be ignored for purposes of ceiling determination. In the present case, the land had already been declared surplus by order dated 18.09.1963, much prior to the institution of the partition suit of 1971. Consequently, the preliminary decree dated 30.12.1971 and the final decree dated 01.07.1972, having been rendered in proceedings to which the State was not a party and concerning land already vested in the State, are void ab initio and cannot confer any legal rights upon the petitioners.
23. Vide order dated 12.04.1978 in Writ Petition No.1837 of 1975, direction was issued to the prescribed authority to afford the petitioners a proper opportunity to exercise their statutory choice for retention of land and to consider any claim of deduction after hearing, the prescribed authority failed to comply with such directions in letter and spirit. Although the petitioners sought time and did place certain documentary evidence on record, no meaningful opportunity was granted to them for substantiating their claim regarding reduction in area. The impugned order dated 28.09.1988 thus stands vitiated for failure to adhere to the mandate of this Court.
24. The order of the prescribed authority dated 18.09.1963, whereby 19.32 acres were declared surplus and directions were issued for its entry in government records, the consolidation authorities did not carry out such entry. This omission is contrary to Section 11-C of the U.P. Consolidation of Holdings Act, 1953, which obliges recording of surplus land as State property. Such failure on part of the consolidation authorities has created unnecessary confusion, though in law the land stood vested in the State upon declaration of surplus, leaving no subsisting rights with the petitioners.
25. The judgment and order dated 12.4.1978, passed in Writ Petition No.1837 of 1975 and the law laid down in the case of Jhandoo (Supra) and Satya Pal Singh (Supra), the petitioners were entitled to the benefit of reduction of area due to proceedings under the Consolidation of Holdings Act and the prescribed authority should have taken its account and calculated the ceiling area and the surplus land on that basis and the same having not been done, the respondents have committed gross error of law and jurisdiction.
26. The respondent Nos.2 and 3 ignored the fact that the petitioners held a total land of 121 bigha, 14 biswa and 15 biswansi, out of which an area of 38 bigha 15 biswa and 5 biswansi was out of consolidation and a total of 82 bigha 19 biswa and 10 biswansi land was within the consolidation operations, against which the petitioners were allotted an area of 68 bigha 8 biswa and 16 biswansi and thus an area of 14 bigha 10 biswa and 14 biswansi was reduced in consolidation and deducting the area of 14 bigha 10 biswa and 14 biswansi reduced in consolidation, a total of 107 bigha 4 biswa and 1 biswansi was held by the petitioners, which should have taken for determination of ceiling area and surplus land of the petitioners and after exemption of an area of 18.19 ares as grove land under Section 6 of the Act an area of 40 acres fair quality land, both totaling to almost 93 bighas 2 biswa and 2 biswansi, an area of 14 bigha 1 biswa and 19 biswansi was liable to be declared surplus as per the law laid down in the rulings mentioned above, whereas the respondents have declared a total of 19.32 acres (almost 30 bigha 19 biswa and 5 biswansi) as surplus land and have thus, deprived the petitioners their valuable right in respect of almost 16 bigha 16 biswa and 6 biswansi of land otherwise than in accordance with law.
27. The prescribed authority has to determine that a tenure holder did not hold any land in excess of the ceiling area after June 8, 1973. It was incumbent upon them to take notice of the events that may have happened subsequently, for instance, under the Consolidation of Holdings Act and to give effect to the reduction in area caused thereby in a tenure-holders holding. In other words, it was held that if the area of the tenure-holder is reduced as a result of the proceedings under the U.P. Consolidation of Holdings Act, then the ceiling authorities should take that into account and calculate the ceiling area in the surplus land on that basis. Due to non-consideration of this aspect of the matter, the impugned orders suffer from apparent illegality and infirmity and are liable to be set aside.
28. In the referring order [Jhandoo (Supra)], an illustration that the reduction in area may be as a result of the valuation made under the U.P. Consolidation of Holdings Act because of which the tenure-holder may be entitled to a lesser area than originally held by him. In such a case, the variation will be more apparent than real and so there can be no justification for making allowance in such a case. In this case also, the reduction in area took place as a result of valuation of the land originally held by the petitioners and of the land subsequently allotted to them. It appears that higher valuation land was allotted to the petitioners and so the area obtained by them was lesser.
29. The proceedings under the Consolidation of Holdings Act are based upon the system of valuation of land prescribed by that Act. The proceedings under the Ceiling Act are founded on area. The system of valuation provided by the Consolidation of Holdings Act is not recognized by the Ceiling Act for determining the ceiling area as prescribed by the Ceiling Act. The method of calculation given in the Ceiling Act alone has to be followed. The burden of the Ceiling Act is that after June 8, 1973 no tenure holder should continue to possess more than the ceiling area. Under Section 29 of the Ceiling Act, there is a specific provision for adjustment of ceiling area in case the tenure-holder acquires some more land. It is implicit in the provision that if because of operation of law the tenure-holders holding gets reduced, that also should be taken into account. The reduction must be one which is valid in law.
30. I am of the considered opinion that if there has been any such reduction in the area qua the land holding of the petitioners, and that possession of the surplus land has yet not been taken, the petitioners may be provided benefit of such reduction in area only to the extent whereof the land has been so reduced because of (a) better quality of land being provided to the petitioners, (b) the land drawn for the public purpose and (c) for improving the cultivatory facilities only. For the purpose the petitioners is at liberty to make an application before the Prescribed Authority. No other issue shall be considered by the Prescribed Authority.
31. The appellate court has jurisdiction to reverse or affirm the findings of the trial court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court while reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it. Due to non consideration of this aspect also, the impugned orders are liable to be set aside on this ground too.
32. The first appeal has to be decided on facts as well as on law. In the first appeal parties have the right to be heard both on questions of law as also on facts and the first appellate court is required to address itself to all issues and decide the case by giving reasons. Unfortunately, the appellate court, in the present case has not recorded any finding either on facts or on law. Sitting as the first appellate court it was the duty to deal with all the issues and the evidence led by the parties before recording the finding regarding title. The appellate court has not followed the aforesaid proposition of law and facts and passed the order in a cursory manner, therefore, the order is liable to be set aside. The appellate court has failed to discharge the obligation placed on it.
33. In the opinion of the Court, the judgment under appeal is cryptic and none of the relevant aspects have even been noticed. The appeal has been decided in an unsatisfactory manner. On careful perusal of the judgment of the appeal shows that it falls short of considerations which are expected from the appellate court. Accordingly, in view of the above and looking to the claim of both the parties, the impugned orders are liable to be set aside. Even the counsel for the private respondent could not dispute the fact that neither the evidence led before the prescribed authority was noticed nor the findings recorded by the prescribed authority have been touched or noticed and reversed, thus, to the aforesaid extent, the submission of the counsel for the petitioners has force and this Court finds itself in agreement with it.
34. This being the position, once a transfer is shown to be bona fide and further satisfies all the other positive and negative conditions laid down in the proviso (b) to Section 5(6), there is no justification in law to stretch the legal fiction further and to spell out from the expression "good faith" an additional requirement of proving pressing necessity for the transfer before the tenure holder is entitled to the benefit of the aforesaid proviso (b).
35. On considering the overall facts and circumstances of the case, the order of the prescribed authority dated 28.9.1988 and order dated 9.12.1996, passed by the Additional Commissioner (Administration), Faizabad (Ayodhya) being illegal, thus, they are hereby set aside.
36. The writ petition succeeds and is allowed.
37. However, the prescribed authority is directed to consider afresh in regard to the question involved in the present writ petition. The said exercise shall be completed within a period of six months from the date of production of a certified copy of this order.
38. No order as to costs.
(Irshad Ali,J.)
October 8, 2025
Gautam
