IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (M/S) No. 5726 of 2001 (Old No. 11853 of 1984) Surendra Kumar S/O Sri Bhag Mal (deceased) and others. … Petitioners. Versus State of U.P. (now Uttarakhand) and others. … Respondents. Mr. Lokpal Singh, Advocate learned counsel for the petitioners. Mr. Sudhir Kumar, Brief Holder, learned counsel for the respondents-State. Date September 27, 2011. Hon’ble B.S.Verma, J.(Oral) (Restoration Application No. 1074 of 2010) Heard learned counsel for the parties and perused the record. Supplementary affidavit filed on behalf of the respondent nos. 1 and 3 is taken on record. This restoration application has been filed by the petitioners to recall the order dated 29-11-2010, whereby the writ petition has been dismissed for want of prosecution. The restoration application is accompanied by an affidavit. Reasons shown in the affidavit are sufficient to recall the order dated 29-11-2010. In the interest of justice the restoration application is allowed. The order dated 29-11-2010 is hereby recalled. The writ petition is restored to its original number. Also heard the learned counsel for the parties on merits. By means of this writ petition, the petitioners have sought a writ in the nature of certiorari quashing the order dated 27- 7-1984 passed by the 2nd Additional District Judge, Saharanpur (Annexure No. 3 to the writ petition) and the order dated 9th June, 1982 passed by the respondent no.2- Prescribed Authority, Roorkee, district Saharanpur (Annexure No.2). 2 Briefly stated the facts giving rise to the present writ petition are that notice under Section Section 10(2) of the U.P. Imposition of Ceiling on Land Holdings Act, 1960 (for short the Act) was issued to the petitioner Surendra Kumar (since deceased). The petitioner was shown in possession of 79 Bighas, 1 Biswa, 5 Biswansi of land in two villages, namely, Chudiala Mohanpur and Sarthedi Shahjahanpur. The area, which was proposed to be surplus was 23 Bighas, 18 Biswas 9 Biswansis. The total holdings of the deceased petitioner also included the holdings of which the petitioners’s mother and other persons were the tenure holder. The petitioner filed his objections inter alia contending that plot nos. 492 and 214/2 were groves. He further contended that an area of 5 Bighas should be excluded from the total holdings of the petitioner inasmuch as on the aforesaid area, the crusher of the petitioner was installed and that an area, which was diminished on account of consolidation operations should also be excluded. It was also asserted that some of the plots were unirrigated. The Prescribed Authority by order dated 3-6-1976 rejected the objection filed by the petitioner and confirmed the notice under Section 10(2) of the Act declaring an area of 23 Bighas 18 Biswa, 9 Biswansi to be surplus land. Aggrieved, the petitioner filed an appeal, which was heard by the 4th Additional District Judge Saharanpur, who vide order dated 12-10-1976 partly allowed the appeal. It was held that the area of 1 Bigha, 8 Biswa acquired for public purpose under the consolidation operations was liable to be excluded and declared the land measuring 22 Bighas, 17 Biswa, 1 Biswansi to be surplus. Aggrieved by the order passed by the appellate court, the petitioner filed Civil Misc. Writ Petition NO. 3894 of 1977 before the Allahabad High Court. The Allahabad High Court by its order dated27-4-1979 held as under:- The petition is accordingly allowed in the manner that the order of the prescribed authority and the judgment of the appellate court are hereby quashed in so far as plot no. 492 has not been treated as grove. The said plot shall be treated as grove. 3 Further the said order of the Prescribed Authority and the judgment of the appellant court shall also stand quashed in so far as the benefit of account of the reduction in consolidation proceedings has been granted by the appellate court only to the extent of one bigha one biswa and 8 biswansis and not to the full extent of three bighas one biswansi. In other respects the order of the prescribed authority and the judgment of the appellate court shall stand intact. The case is remanded to the prescribed authority for a fresh calculation of the surplus land in accordance with the aforesaid direction. In the circumstances, there will be no order as to costs. In pursuant to the directions of the Allahabad High Court, referred to above, the Prescribed Authority passed the order dated 9-6-1982 and gave benefit of reduction of the area in consolidation proceedings as directed. So far as plot no. 498 is concerned, that was treated as grove and ultimately, land of plot no. 496 measuring 0-16-0 Bigha and land of plot no. 498 M. measuring 0-19-10 Bigha and land of plot no. 499 M., measuring 0-5-10 Bigha, total measuring 2 Bigha, 1 Wiswa, 10 Wiswansi of village Chudiala Mohanpur and remaining land of plot no. 235 measuring 15-6-18 Bigha of village Sarthedi Shahjahanpur was declared surplus in possession of petitioner Surendra Kumar as mentioned in the order dated 9-6-1982. Further aggrieved by the order dated 9-6-1982, petitioner-appellant Surendra Kumar preferred Ceiling Appeal No. 346 of 1983. The appeal was dismissed by II Additional District Judge Saharanpur vide order dated 27-7-1984, which gave rise to the present writ petition. Counter affidavit has been filed on behalf of the State, wherein the averments made by the petitioner has been refuted. Supplementary affidavit has also been filed on behalf of the respondents to the effect that in village Sarthedi Shahjahanpur possession of the surplus land was taken from the tenure holder and thereafter the land was allotted to the landless agricultural labourers. 4 So far as the land of village Chudiala Mohanpur is concerned, no possession of the land as declared surplus in respect of the three plots mentioned in the order passed by the Prescribed Authority had been taken over by the State till today. It is pertinent to mention here that the Allahabad High Court vide order dated 27-4-1979 had set aside the order passed by the two courts below and directed that plot no. 492 shall be treated as grove and that benefit on account of reduction of land in consolidation proceeding was given to the tenure holder, as has been referred to above. The Prescribed Authority has given the benefit as directed by the Allahabad High Court vide order dated 27-4-1979 and has declared the land surplus accordingly. The judgment of the Allahabad High Court has attained finality as the same was not assailed before the Apex Court. So far as the impugned orders passed by the two courts below are concerned, the Prescribed Authority has passed the order in pursuance to the directions of the Allahabad High Court and the appeal has rightly been dismissed. I do not find any manifest error of law in the impugned judgment and orders. Benefit of grove land was also given and the area, which was reduced in consolidation proceedings had also been deducted from the holding of the tenure holder. It is well settled that if the possession has not been taken over by the State, the tenure holder can change his choice. It is admitted case of the parties that the possession of the surplus land of the petitioner pertaining to village Sarthedi Shahjahanpur had already been taken and the land has been allotted to the landless agricultural labourers, therefore, at this stage the request of the petitioner for change of choice is not tenable. So far as the declaration of surplus land of plot nos. 496, 498 M. and 499 M. of the tenure holder-petitioner of village Chudiala Mohanpur made by the Prescribed Authority in its order dated 9-6-1982 is concerned, it has been stated in paragraph no. 9 of the supplementary affidavit filed on behalf of the respondents that at present the petitioner is in possession of plot Nos. 496, 498 5 M. and 499 M. measuring 2-1-10 Bigha land of village Churiayala Mohanpur, Tehsil Roorkee. As such the petitioner may move an application before the Prescribed Authority to change his choice within a period of one month from today along with a certified copy of this order. If such an application is moved, the Prescribed Authority shall accept the application for change of choice and in lieu thereof may take possession over the land being given in the option by the tenure holder-petitioner. With the above direction and observation, the writ petition is partly allowed, in so far as change of choice of the petitioner pertaining to the surplus land of plot nos. 496, 498 M. and 499 M. of village Chudiala Mohanpur, Tehsil Roorkee is concerned. (B.S.Verma, J.) RCP