Vidyawati vs State of U.P.and Others

Binod Kumar Roy, J.—The petitioner prays to quash the orders, dated 1111983 passed by the Additional Commissioner (Judicial), Moradabad (respondent No. 2) in appeal No. 33/198788 and the Prescribed Authority, . Moradabad (respondent No. 3), dated 147 1988 in Case No. 170 of 1976 in so far as they related to rejection of her prayer to grant choices as contemplated under Section 12A of the U.P. Imposition of Ceiling on Land Holdings Act, 1960 (hereinafter referred to as the Act) and to command them to give an opportunity to select the lands of her choice under the aforementioned provisions.

A perusal of the impugned order, as contained in Annexure3 to the writ petition shows that her prayer for selecting the land of her own choice was rejected on the ground that despite adequate opportunities being granted she had not availed them and hence there does not appear any justification to accede to her request.

Sri K.M. Sinha, learned counsel for the petitioner submitted as follows:

The Appellate Authority has committed a patent error in thinking that the petitioner had not given option. In ground No. 5 of her memorandum of appeal the petitioner has stated that she had already submitted her choice to select the lands and that after hearing the case the Prescribed Authority had adjourned the case waiting for the report of the Consolidation Officer, but after receipt of that report the Prescribed Authority did not afford arty opportunity or further heard the petitioner any, thus, had violated the principles of natural justice. As held by this Court in Bharat alias Bharat Singh v. State of U.P. and others, 1977 AWC 407 that since the appeal was in continuation of the lis the Appellate Authority ought to. have allowed the prayer of the petitioner to select lands of her choice.

Sri Mamgain, learned Standing Counsel appearing on behalf of the respondents of the other hand, contended as follows :

(i) After the decision of the appellate authority the land of the petitioner, which were declared surplus, have already been disturbed and accordingly she is not entitled to the relief claimed for in this writ petition.

(ii) The ratio laid down in Bharat Singh (supra), relied upon by the learned counsel of the petitioner, is not applicable in this case.

Learned counsel for the petitioner, in reply further submitted that the assertion that the lands in question have been distributed has been denied by the petitioner in paragraph9 of the rejoinder affidavit.

In my opinion the prayer of the petitioner, who is a widow, is fit to be allowed. The statement made in paragraph ''13'' of the counter affidavit to the effect that the land in dispute has been allocated according to law on 2211989 has been denied in paragraph19 of the rejoinder affidavit filed by the petitioner claiming that she is still continuing to be in possession of the lands declared to be surplus and that the allocation might have been on paper. I do not want to enter into the controversy as to whether the authorities have put in a fictious date of allotment of the surplus land, as alleged by the petitioner. In Bharat Singh (supra) it was clearly laid down by 4this court that option can be exercised even in appeal. This ratio was binding on the Appellate Authority and he was not justified in rejecting the prayer of this petitioner. Even assuming that the lands were allegedly distributed, as claimed by the respondents in their counter affidavit, in view of pendency of this application, that action was subject to result of this writ application. Surprisingly, the respondents have not come up with a categorical statement as to whom they have distributed that lands of the petitioner. The petitioner''s right, title and interest ia these lands, protected under Article 300A of the Constitution of India, could not and can not be nullified the authorities in the manner as suggested to by them.

For the aforesaid reasons this writ petition is allowed, the order of the Appellate Authority, in so far as it relates to rejection of the petitioner''s prayer to select the lands of her choice, is set aside and the matter of option is remitted, back to Respondent No. 3 for fresh disposal in the light of observations made above.

If the lands, which have been declared surplus, have really been distributed, they will be distributed afresh after accepting the option of the petitioner to avoid real prejudice to the petitioner as well as to theState of Uttar Pradesh.

In the peculiar facts and circumstances of the case I make no order as to cost.

Let a writ of certiorari issue accordingly.