JUDGMENT :

1. Heard Sri Naresh Chandra Pal, Advocate, holding brief of Sri Indra Pal Singh Rajpoot and learned Standing Counsel for the State and perused material available on record.

2. This writ petition has been filed under Article 226 of the Constitution of India to issue a writ, order or direction in the nature of certiorari for quashing the impugned judgment and order dated 29.04.2004 passed by Additional Commissioner, Chitrakoot Dhaam Division, Banda.

3. In brief, fact of the case are that a notice was issued to late Radha Charan (Deceased) Resident of Village Chilli Pargana and Tehsil Rath, District Banda, under Section 10 (2) of the Imposition of Ceiling on Land Holdings Act, for filing objection on the basis that there is Rakba 26.97 Acre surplus irrigated land, which has to be forfeited in favour of the State. As per notice maximum useful area is 24.00 Acre and after service of notice Radha Charan filed an objection that the land of the objector is un-irrigated land and it has wrongly been shown to be irrigated land. He further mentioned that from his wife Suhag Rani, out of wedlock Ram Pal Singh and Madan Pal Singh were born, who were living separately. Since the time of their mother, for their livelihood 20.00 acre of the land was given to them as their share of which they are in possession and are cultivating the same. When the children were not satisfied they got the land transferred by way of gift-deed from the objector since before 24.01.1971, therefore, this land should not be added in the account of the objector. Both the sons are adult and the transfer in favour of the sons is legal and valid.

4. After several years from the death of Smt. Suhag Rani, the objector solemnised another marriage with Smt. Girja Rani and with whom he had two children, Km. Saroj and Jai Singh, thus the family of the objector consists of husband and wife and two minor children. Arazi Nos. 644, 645 & 1694 are in possession and holding of the objector and it has been wrongly included in the possession of Mohan Lal, Murlidhar, Swami and Channni and another. Their name has wrongly been mentioned and they are not in possession. Usar and grove land has wrongly been shown as Majrua land. It has also been mentioned that in the order dated 09th January, 1975, the Prescribed Authority has accepted the existence of adult sons and 9.02 acre un-irrigated land has been shown as surplus land and the question regarding this point cannot be raised again. Only the land in the name of the applicant can be considered.

5. Madan Pal Singh and Ram Pal Singh, have filed an objection on the similar in nature and Bhurjai, Khamodeen, Channo, Mohan Lal and Mataiyya have filed separate objection which is similar to para 9 of the objection of the tenure holder.

6. Issues were framed and the evidences were recorded and on 22.06.1976. Mool Chandra Yadav, the Prescribed Authority, Ceiling, Rath, Hamirpur held that 17.40 Acre normal or 8.16 Acre irrigated land is surplus land. Prior to that on 09.01.1975 Sri C.L. Verma, Prescribed Authority, Rath, District Hamirpur passed judgment and order dated 09.01.1975 and held that 9.02 Acre un-irrigated land of the tenure holder Radha Charan is surplus land for the purposes of Ceiling Act.

7. The order dated 22.06.1976 passed by the Prescribed Authority was challenged in the Court of District Judge, Hamirpur, which was decided on 23.12.1976 by III Additional District Judge in Appeal No. 01 of 1976, which was challenged by the Tenure Holder in Civil Misc. Writ Petition No. 925 of 1977 – Radha Charan Vs. State of U.P & Ors. Which was decided on 08th November, 1978.

8. The petition was partly allowed and the order dated 23.12.1976 passed by III Additional District Judge, Hamirpur was set aside and he was directed to rehear the appeal on the second point mentioned in the judgment of the High Court and it was directed to pass afresh order. Thereafter, the case was decided. After amendment in the Act on 24.03.1988, the Commissioner Jhansi