JUDGMENT M. Quddusi, J.
1. These are two writ petitions challenging the judgment and orders passed in two civil appeals filed under Section 13 of the U. P. Imposition of Ceiling on Land Holdings Act (hereinafter referred to as the 'Ceiling Act').
2. Both the appeals have been decided by a common Judgment and order by Additional Commissioner (Judicial), Lucknow Division, Lucknow. Therefore, both the writ petitions are being disposed of by this common order.
3. Brief facts of the case are that Late Laxmi Shanker was father of the Ramesh Chandra petitioner of Writ Petition No. 47 of 2004 and grandfather of Rajeev Kumar Tewari and Sanjeey Kumar Tewari the petitioners of W. P. No. 48 of 2004. Notice under Section 10 (2) of the Ceiling Act was issued against Late Laxmi Shanker who filed objections and the case in that respect was registered as 119-State v. Laxmi Shanker, which was decided by the Prescribed Authority holding that Laxmi Shanker tenure holder has no surplus land under the Ceiling Act. It is alleged that during his life-time he had executed a Will Deed in favour of his grandsons, namely, Rajeev Kumar Tewari and Sanjeev Kumar Tewari. After his death the Prescribed Authority again issued notice under Section 10 (2) of the Ceiling Act to the son of the Late Laxmi Shanker, namely, Ramesh Chandra petitioner of W. P. No. 47 of 2004. A case was registered in that respect as Case No. 8 of 2002. The petitioner Ramesh Chandra filed his objections to the effect that he has no concern with the land which was the holding of his late father Laxmi Shanker as according to the Will Deed the same has been inherited by his sons, i.e., the grandsons of Late Laxmi Shanker who are in possession over the same. The Prescribed Authority framed 12 issues, in which Issue No. 1 was whether the petitioner Ramesh Chandra has surplus land? If yes, its effect. Issue No. 2 was in respect of the share of the petitioner Ramesh Chandra. Issue No. 3 was whether Laxmi Shanker had executed a Will in respect of his all movable and immovable property in favour of his grand sons Rajeev Kumar Tewari and Sanjeev Kumar Tewari the petitioners of W. P. No. 48 of 2004. Issue No. 4 was whether Rajeev Tewari and Sanjeev Tewari are adults? If so, its effect. Issue Nos. 5 to 12 were related to the nature of the land i.e., whether certain plots are grove land, the same are un-irrigated and whether one plot is a pond? An objection was raised by the petitioner Ramesh Chandra before the prescribed authority that the ceiling proceedings were held initially against his father under Section 10 (2) of the Ceiling Act which were decided in his favour and it was held by the prescribed authority that his father was not having surplus land. The prescribed authority, on this, summoned the file relating to that case and held that some more plots were found later on and as the proceedings did not form res judicata, hence they can be adjudicated again and thus, the prescribed authority vide order dated 27.3.2003 declared 4.932 hectares surplus land in terms of irrigated treating Ramesh Chandra petitioner as tenure holder and Issue Nos. 2 and 4 were decided against the . tenure holder holding that the Will Deed was executed after the specified date i.e., 24.1.1971 and on that date both the grandsons of Late Laxmi Shanker were not born. Their dates of birth are mentioned as 5.9.1971 and 9.5.1975, respectively.
4. Against the aforesaid Judgment two appeals were filed. One by Ramesh Chandra and the other by Rajeev Kumar Tewari and Sanjeev Kumar Tewari grandsons of Late Laxmi Shanker. Both the appeals were decided by a common judgment by the Additional Commissioner (Judicial), Lucknow Division, Lucknow. The appeal filed by Ramesh Chandra Tewari was allowed in part and the matter was remanded for re-determination of Issue Nos. 5 to 12 upholding the findings given on Issue Nos. 1 to 4, The appeal filed by Rajeev Kumar Tewari and Sanjeev Kumar Tewari was dismissed,
5. Feeling aggrieved Ramesh Chandra Tewari, Rajeev Kumar Tewari and Sanjeev Kumar Tewari have filed the instant two writ petitions before this Court.
6. I have heard learned counsel for the petitioners and the learned standing counsel for the State of U.P. at quite length.
7. This is not disputed that Late Laxmi Shanker Tewari was the original tenure holder of the land, for which the proceedings were held against him under Section 10 (2) and it was declared by the prescribed authority that he was not having surplus land. After his death, fresh proceedings were initiated against the son of Late Laxmi Shanker, namely Ramesh Chandra Tewari but it has not been determined as to the plots, which were included allegedly as the additional plots, came into knowledge of the prescribed authority, were the original holding of Ramesh Chandra Tewari or which were recorded as holding of his late father Laxmi Shanker as in case the subsequent additional plots were the holding of Laxmi Shanker, there is no restriction to initiate proceedings under Section 10 (2) of the Ceiling Act but in case the holding of Laxmi Shanker has been added in the holding of Ramesh Chandra Tewari and after making addition the proceedings were initiated against Ramesh Chandra Tewari, notice could not have been issued under Section 10 (2) of the Ceiling Act alone as for that purpose Section 29 of the Ceiling Act has been enacted, which is quoted as under :
"29. Subsequent declaration of further land as surplus land.--Where after the date of enforcement of the U. P. Imposition of Ceiling on Land Holdings (Amendment) Act, 1972--
(a) any land has come to be held by a tenure-holder under a decree or order of any Court, or as a result of succession or transfer, or by prescription in consequence of adverse possession, and such land together with the land already held by him exceeds the ceiling area applicable to him ; or
(b) any unirrigated land becomes irrigated land as a result of irrigation from a State irrigation work or any grove-land loses its character, as grove land or any land exempted under this Act ceases to fall under any of the categories exempted, the ceiling area shall be liable to be re-determined and accordingly the provisions of this Act, except Section 16, shall mutatis mutandis apply."
8. The case of the Prescribed Authority is that the petitioner Ramesh Chandra Tewari has become tenure holder of Late Laxmi Shanker as a result of succession and therefore, in view of Section 29 of the Ceiling Act, which provides that whereafter the date of enforcement of U.P. Imposition of Ceiling on Land Holdings (Amendment) Act, 1972, which came into force w.e.f. 19.1.1979 any land which has come to be held by a tenure-holder as a result of succession, and such land together with the land already held by him exceeds the ceiling area applicable to him, the Ceiling area shall be liable to be re-determined and accordingly, the provisions of the Ceiling Act except Section 16, shall mutatis mutandis apply, meaning thereby that in that case notice under Section 29 read with Section 10 (2) of the Ceiling Act was liable to be issued.
9. Therefore, if the Prescribed Authority had to proceed against Ramesh Chandra Tewari as the land allegedly came to be held by him as a result of succession together with the land already held by him, in that case it could not have been said that the Will executed by original tenure holder had no effect as the same was executed after the specified date in the Ceiling Act. Only the genuineness of the Will was to be seen and if it was found that the Will was genuine there would have been no question to ignore that on the ground that it was executed after the specified date in the Ceiling Act and in such circumstances, the petitioners of W.P. No. 48 of 2002, namely, Rajeev Kumar Tewari and Sanjeev Kumar Tewari were entitled to take a plea that after the death of Laxmi Shanker they inherited his property on the basis of the Will executed in their favour by their grandfather Laxmi Shanker.
10. All the above points have not been considered by the Prescribed Authority and notice of this ignorance has also not been taken by the appellate authority. Therefore, both the writ petitions are liable to be allowed in part and the matter is liable to be remanded to the Prescribed Authority for fresh decision in the light of the observations made in the body of this judgment.
11. In the result, both the writ petitions are allowed in part. Judgment and orders dated 27.3.2003 passed by the Additional Collector (F & R)/Prescribed Authority (Ceiling), Unnao and dated 21.5.2004 passed by Additional Commissioner (Administration), Lucknow Division, Lucknow, are quashed. The matter is remanded to the Prescribed Authority concerned with the direction that he shall re-open the case and proceed further in accordance with the observations made in the body of the Judgment.
12. Copy of this order shall be supplied to the learned counsel for the parties on payment of usual charges, within 2 weeks.