Radha Charan vs State of U.P.

Paritosh K. Mukherjee, J.—The cause, list shows this case for admission. However, Sri S.K. Srivastava, learned Counsel for the Petitioner, and learned Standing Counsel have argued the case, on meats, and with their consent, the writ petition is being finally decided, in accordance with Rules of the Court.

The facts of the case, in brief, are that a notice u/s 10(2) of the U.P. Imposition of Ceiling on Laud Holdings Act (hereinafter referred to as ''the Act'') was served on the Petitioner in 1975 which was in respect of land which was declared as ''surplus'' by Prescribed Authority. Thereafter, a second notice was again issued on 22-10-1975 in respect of the tame land. On the earlier occasion, Prescribed Authority had declared 9.02 acres of land as ''surplus'' but in the second nonce, it was proposed to be raised to 26 97 acres.

The Petitioner filed objection to the aforesaid notice. Respondent Nos. 4 and 5, in whose favour the land was declared surplus'', also filed objection Their ground of objection was that about 20 26 areas of land was already gifted to them by Petitioner through a registered gift deed dated 14-6-69 and by virtue of said gift deed, they took over possession of the land. Their names were mutated in 1970. Therefore, too aforesaid land was wrongly included in the Khata of the Petitioner.

The Petitioner, Respondent Nos. 4 and 5, as well as the State adduced evidence in support of their respective case, and they also produced witnesses. Prescribed Authority declared 8.16 acres irrigated land as ''surplus'' by judgment and order dated 22-6-1976. Petitioner felt aggrieved, and, went in appeal, which was, however, dismissed by IIIrd Additional District Judge, Hamirpur by his order dated 23-12-1976. The case of the Petitioner in the writ petition is that though the appellate authority had allowed the objection of the Petitioner regarding the issue of laud occupied by Swami Din, Channi and Mataiyan, which was illegally added in the ceiling area of Petitioner, but the appellate authority went wrong in dismissing the appeal by inaccurate calculation of ceiling area.

Against aforesaid judgment and order, the Petitioner came before this Court by means of Civil Misc. Writ Petition No. 925 of 1977. which was partly allowed by Hon''ble Mr. Justice M.B. Farooqui on 8-11-1978 and the case was sent back to the lower appellate court for decision afresh.

Thereafter, the case of the Petitioner is that nothing happened till 1985 when the case was transferred to the Court of Commissioner Jhansi on account of amendment of the Act. On 24-3-1988, the Commissioner, Jhansi Division, Jhansi decided the appeal against the Petitioner behind his back as on that day the lawyers were on strike. Hence this petition.

Though, this has not been argued by the learned Counsel for the Petitioner, but to my mind it strikes as to whether second notice issued on 22-10-75 by the Prescribed Authority did have any sanction of law? In my opinion, the Prescribed Authority docs not enjoy the inherent power of review unless it is expressly conferred by Statute. Moreover a perusal of second notice, dated 22-10-1975, which is available as Annexure 1 to the writ petition, does not disclose the provision of law under which the proceedings were reopened. Thus, in my view, the irresistible conclusion is that the Prescribed Authority did not have the power to review the earlier order passed by an Authority, having concurrent jurisdiction. I find support for reaching to this conclusion, from a decision of Calcutta High Court in Satyanarayan Banerjee and Others Vs. Charge Officer and A.S.O. Birbhum and Others, , wherein, it has been held by Hon we Mr. Justice Anil Kumar Sen that a successor Authority has no jurisdiction to take a different view and reopen the proceeding for review.

In this connection, it would not be out of place to mention that by enacting the previous of Section 33-B of the Income Tax Act 1922 commissioner of Income Tax has been authorised to review or revise an assessment made by an Income Tax Officer. This power has not been given to an Income Tax Officer although he enjoyed such power u/s 34 of old Act of 1922 corresponding to Section 48 of new Act of 1961.

Be that as it may the ends of justice will be met if the case is ends back to the appellate authority for'' deciding the appeal afresh, in accordance with law after hewing both the parties the Petitioner is at liberty to take all pleas, open to him, under the law, before the appellate authority.

In the result, the writ petition is disposed of with the direction to Additional Commissioner Jhansi. responds No. 2 to decide the appeal, which being sent hack to him. afresh accordance with law After hearing both The parties, preferably within six weeks from be date of production of a certified copy of this judgment and order. In the meantime. The parties shall maintain statu, quo, with regard to possession over the land as of today, The judgment and order passed by Appellate Authority dated 24-3-88 is set aside.