Ram Raj vs Additional Commissioner, Jhansi Division and Others

Paritosh K. Mukherjee, J.—This writ petition is listed for admission. However, with the consent of learned Counsel for the parties, the writ petition is being disposed of finally in accordance with provisions of Rules of the Court.

Brief facts of the case are that U.P. Imposition of Ceiling on Land Holdings Act was amended by Act No. XXIII of 1973. Thereafter, a notice was issued to the Petitioner to show cause as to why the land disclosed in the notice be not treated as surplus land. A case was registered, being case No. 60 of 1973-74. In the aforesaid case, the Prescribed Authority declared 6.46 acres of land as surplus by his order dated 30-9-1974. Petitioner filed an appeal, which too was dismissed, as a result whereof, the surplus land of 6-46 acres was taken over by the State.

The aforesaid Act was again amended. As a result of such amendment, fresh proceedings were initiated against the Petitioner and a new case, being case No. 178 of 1975-76, was registered. The case of the Petitioner is that, without his knowledge, the Prescribed Authority declared 12.52 acres of land as surplus by his order dated 21-2-1978. However on account of consolidation operation in the village in question, the aforesaid order could not be given effect to, Thereupon, the Prescribed Authority passed yet another order on 26-12-1985 declaring 10 acres of land as surplus. The averment of the Petitioner, made in paragraph 5 of the writ petition, is that he did not have any knowledge of the aforesaid order and as soon as he came to know about the same, he preferred an appeal before the Commissioner. The appeal was accompanied by an application u/s 5 of the Limitation Act, However, the appeal was dismissed as barred by time. Hence this writ petition.

Learned Counsel for the Petitioner vehemently urged before me that Petitioner was not afforded any opportunity of hearing during the course of proceedings and, in this connection, he drew my attention to paragraph 7(a) of the writ petition wherein the Petitioner has specifically asserted that no notice was ever served on the Petitioner. On the other hand, learned Standing counsel contended that notice was served on the Petitioner.

Be that as it may, although the amendment of 1975 has given power for reopening of earlier proceedings, but subsequent officer having concurrent jurisdiction has no authority to take different via* and reopen the proceeding. This controversy has been set at rest in Satyanarayan Banerjee v. Charge Officer and A.S.O. Bolepur AIR 1975 Cal 41 by Hon''ble Mr. Justice Anil Kumar Sen. In the aforesaid case, it has been held that the subsequent officer having concurrent jurisdiction has no authority to take different view and reopen the proceedings.

In case the Amending Act gives power for revision or reopening the proceeding, said power can only be exercised by a superior officer in the hierarchy. In the present case, Commissioner of the Division, or, the Board of Revenue was competent authority. That being the legal position, I am of the view that the petition has force and it deserves to be allowed by setting aside the impugned orders passed by Respondent Nos. 1 and 2.

In the remit, the writ petition is allowed and the orders dated 3-2-1988 and 19-11-1986 passed by Respondent Nos. 1 and 2 respectively are quashed. The case is remanded to Respondent No. 5 for taking a fresh decision, In accordance with law, after affording opportunity of hearing to the Petitioner. It will be open for the Petitioner to take all pleas permissible to him under law. Pending further adjudication, status quo regarding possession, as on today, is directed to be maintained by the parties.