Ram Lal v. State Of U. P. — 1978 DIGILAW 580 (ALL)

JUDGMENT Gopi Nath, J. 1. THIS is a writ petition under Article 226 of the Constitution arising out of proceedings under the U.P. Imposition of Ceiling on Land Holdings Act. 2. THE petitioner has challenged the orders passed by the Prescribed Authority and the appellate authority dated 6-4-1976 and 20-9-1976 respectively. The main ground of challenge is that since in earlier proceedings under the old Act no land was found surplus with the petitioner, the present proceedings were barred by the principle of res judicata. The appellate authority in the proceedings had by an order dated 31-5-1975 held that no land was surplus with the petitioner. Those proceedings were concluded before the amendment of the Principal Act by Acts 2 of 1975 and 20 of 1976. The order dated 31-5-1975 it was pleaded bound the parties and the present proceedings were misconceived. The authorities below however re-determined the ceiling area of the petitioner and declared an area of 12 bighas, 1 biswas and 5 biswansis as surplus. This was challenged as without jurisdiction. The facts giving rise to the petition were as follows : A notice under Section 10(2) of the Act was issued to the petitioner under the Principal Act as amended by Act 28 of 1973 proposing to declare an area of 12 bighas 1 biswa and 5 biswansis of land as surplus. The petitioner's holding included an area of 35 bigha 11 biswas and 10 biswansis of land, which he claimed as ancestral sir and khudkasht. It was alleged that the petitioner's son Shugan Chand and his grand sons Naresh Chand and Suresh Chand had a 1/2 share in it and after excluding their share, the petitioner's holding had no surplus land in it. This objection was repelled by the Prescribed Authority by an order dated 30-11-1974. On appeal the appellate authority accepted the petitioners' contention that his son and grand sons had a 1/2 share in the disputed holding which was ancestral sir and khudkasht. The ceiling area was, accordingly, determined, and no land was found as surplus with the petitioner. The order of the Prescribed Authority was set aside and the notice issued to the petitioner was discharged by the appellate Authority by an order dated 31-5-1975. The ceiling area was, accordingly, determined, and no land was found as surplus with the petitioner. The order of the Prescribed Authority was set aside and the notice issued to the petitioner was discharged by the appellate Authority by an order dated 31-5-1975. The learned District Judge observed in his order that i was conceded on behalf of the State that an area of 35 Bighas 11 Biswas and 10 Biswansis held by the petitioner was his ancestral sir and Khudkasht, in which his son had a half share. Besides this concession, the appellate authority, on a consideration of the evidence on record, also found that the disputed holding was ancestral Sir and Khudkasht of the petitioner. The relevant evidence including the Khataunis of the settlement years 1324 F. and 1359 F. and C.H. Forms nos. 23 and 41 were referred. This order became final between the State and the petitioner. After the amendment of the principal Act by U. P. Act 20 of 1976, a fresh notice was issued to the petitioner under Section 10 (2) proposing again to declare an area of 12 Bighas 1 Biswa and 5 Biswansis of his land as surplus. The petitioner raised two main objections before the Prescribed Authority (1) that the present proceedings were barred by the principle of res judicata as the matter had already been heard and decided in favour of the petitioner on merits, and (2) that an area of 35 Bighas 11 Biswas and 10 Biswansis of the petitioner's land was ancestral Sir and Khudkasht, in which his son had half share, and that land could not be held as the petitioner's exclusive holding. The Prescribed Authority held that the proceedings were not barred by the principle of res judicata in view of the provisions of Sec. 38-B of the Act. Fresh determination of the ceiling area could, accordingly, be made by the proceedings in question in view of the amendment of the principal Act by Act 20 of 1976, and the finding recorded in the earlier proceedings could not bar a fresh determination of the issues involved. It held that the land claimed as ancestral Sir and Khudkasht by the petitioner was not such land, and the petitioner's son had no interest in it. An area of 12 Bighas 1 Biswa and 5 Biswansis was declared as surplus with the petitioner. 3. It held that the land claimed as ancestral Sir and Khudkasht by the petitioner was not such land, and the petitioner's son had no interest in it. An area of 12 Bighas 1 Biswa and 5 Biswansis was declared as surplus with the petitioner. 3. ON appeal, the appellate authority affirmed that order. It also held that the earlier proceedings did not bar the instant proceedings, and a fresh determination could be made of the ceiling area of the petitioner under the principal Act as amended by Act 20 of 1976. The finding recorded on the Sir and Khudkasht nature of a part of the petitioner's holding could, accordingly, be reopened in view of the provisions of Section 38-B of the Act. It went behind the order passed in favour of the petitioner in the earlier proceeding only on the ground that in proceedings under the Consolidation of Holdings Act, the objector had not pleaded that his son had half share in the holding, and, since he alone was found recorded as the Bhumidhar of the disputed land, it could be treated as his exclusive holding. The Consolidation proceedings accordingly by Section 49 of the Consolidation of Holdings Act barred a reopening of that question. The evidence produced by the petitioner was not examined, and only the bar of Section 49 was applied against him. It would be seen that the order of the Prescribed Authority was affirmed on two grounds-(1) that amendment of the Principal Act by Act 20 of 1976 reopened all old proceedings, and redetermination could take place as a mater of course, and (2) that the objection as to the ancestral Sir and Khudkasht character of the disputed holding was barred by Section 49 of the Consolidation of Holdings Act. 4. AGGRIEVED, the petitioner has come up to this Court. The petition concerns the true scope and construction of Section 38-B of the Act, by reference to the provisions of Section 31 of Act 20 of 1976. It also concerns the true scope and construction of the provisions of Section 49 of the Consolidation of Holdings Act. 4. AGGRIEVED, the petitioner has come up to this Court. The petition concerns the true scope and construction of Section 38-B of the Act, by reference to the provisions of Section 31 of Act 20 of 1976. It also concerns the true scope and construction of the provisions of Section 49 of the Consolidation of Holdings Act. The first question to be considered is whether a redetermination of the ceiling area of a tenure-holder after the amendment of the principal Act by amending Act 20 of 1976 has to follow as a matter of course in respect of all the cases decided earlier by the authorities or it is confined to cases affected by the amendments incorporated. To put it in other words, whether a fresh notice for redetermination of surplus land was necessarily to be issued in all the cases decided earlier or only in those cases in which the amendments rendered redetermination necessary. We shall examine this question with reference to the transitory provisions of Section 9 of Act 2 of 1975 and Section 31 of Act 20 of 1976. Section 9 of the Act 2 of 1975 provides as follows : "Where an order determining the surplus land in relation to a tenure-holder has been made under the principal Act, before the commencement of this Act, the Prescribed Authority may at any time within a period of two years from the commencement of this Act, redetermine the surplus land in accordance with the principal Act as amended by this Act." 5. THIS provision permits a redetermination of surplus land in view of the amendments made in the principal Act, that is why the redetermination has to be made in accordance with the Principal Act as amended by Act 2 of 1975. It is thus apparent that the redetermination is called for only in the cases affected by the amendments made in the Principal Act by Act 2 of 1975. To the similar effect are the provisions of Section 31 of Act 20 of 1976 which reads : "(1) All proceedings under sub-sections (3) to (7) of Section 14 of the Principal Act, as it stood immediately before the commencement of the Uttar Pradesh Imposition of Ceiling on Land Holdings (Amendment) Ordinance, 1976, pending before any court or authority immediately before the date of such commencement shall be deemed to have abated on such date. (2) Where an order determining the Surplus land in relation to a tenure-holder has been made under the principal Act before January 17, 1975 and the Prescribed Authority is required to redetermine the surplus land under Section 9 of the Uttar Pradesh Imposition of Ceiling on land Holdings (Amendment) Act, 1974, then notwithstanding anything contained in sub-section (2) of Section 19 of the Uttar Pradesh Imposition of Ceiling on Land Holdings (Amendment) Act, 1972, every appeal under Section 13 of the Principal Act or other proceedings in relation to such appeal, preferred against the said order, and pending immediately before the tenth day of October, 1975, shall be deemed to have abated on the said date. (3) Where an order determining surplus land in relation to a tenure-holder has been made under the Principal Act before the tenth day of October, 1975, the Prescribed Authority (as defined in the Principal Act) may, at any time within a period of two years from the said date, redetermine the surplus land in accordance with the Principal Act as amended by this Act, whether or not any appeal was filed against such order and notwithstanding any appeal (whether pending or decided) against the original order of determination of surplus land. (4) The provisions of Section 13 of the Principal Act shall mutatis mutandis apply to every order redetermining surplus land under sub-section (3) of this Section or Section 9 of the Uttar Pradesh Imposition of Ceiling on Land Holdings (Amendment) Act, 1974. Provided that the period of thirty days shall, in the case of an appeal against the order referred to in Section 9 of the Uttar Pradesh Imposition of Ceiling on Land Holdings (Amendment) Act, 1974 be computed from the date of such order or October 10, 1975 whichever is later. (5) The provisions of Section 13-A of the Principal Act shall mutatis mutandis apply to every redetermination of surplus land under this section or under Section 9 of the Uttar Pradesh Imposition of Ceiling on Land Holdings (Amendment) Act, 1974. (6) Where any Assessment Roll has become final under sub-section (4) of Section 21 before the Sixteenth day of Feb. 1976, the same shall not be reopened, notwithstanding any amendment made in chapter III of the Principal Act read with the Schedule thereof by this Act." 6. (6) Where any Assessment Roll has become final under sub-section (4) of Section 21 before the Sixteenth day of Feb. 1976, the same shall not be reopened, notwithstanding any amendment made in chapter III of the Principal Act read with the Schedule thereof by this Act." 6. SUB-section (2) of Section 31 makes it clear that only those proceedings in appeal shall be deemed to have abated in which the Prescribed Authority is required to redetermine the surplus land under Section 9 of the U. P. Imposition of Ceiling on Land Holdings (Amendment) Act, 1974. SUB-section (3) makes the position further clear and states that notwithstanding an earlier order determining surplus land the Prescribed Authority may redetermine the same in accordance with the provisions of the Principal Act as amended by Act 20 of 1976. The redetermination thus was required only if it was necessitated by the amendments made in the principal Act notwithstanding the pendency or decision of an appeal filed against the earlier order of determination of surplus land by the Prescribed Authority. The various Amending Acts including Act 20 of 1976 made changes and additions in the various Sections of the Principal Act including Section 3. A new section as 4-A was added laying down principles on which the irrigated nature of land was to be determined. These amendments did not recast the entire Act or reintroduced changes in all the sections of the Act. They only touched certain sections of the Act while preserving the rest of it. For example, in the definition Section 3 changes were made only in some sub-sections but not all. In the definition of grove in Section 3 (8) originally trees like guava, pappaya and Vine were not excluded. Under the amended definition, those plantations were not to be taken into account, with the result that the land covered by those trees could not be held as grove land. Thus, in a case where a holding in an earlier proceeding had been found to be grove land on account of the existence of Guava trees, it could not be held to be a grove land under the Principal Act as amended by the Amending Act and the declaration of the surplus area could be reopened on the ground of the amendment made in the definition of grove land. The Prescribed Authority could in such a case start fresh proceedings for redetermination of surplus land in view of the amendment necessitating it. A fresh proceeding in the same manner could be started in respect of other cases where the changes introduced, were found to be necessitating a redetermination. But the transitory provisions did not require the Prescribed Authority to make a general resurvey of the earlier proceedings regardless of, whether the amendments necessitated a redetermination or not. 7. IN our opinion, a general review of the earlier orders was not the interendment of the provisions permitting redetermination. It was confined to cases which required redetermination in view of the amendments incorporated in the Principal Act. The question in this case is, whether the amendments incorporated in the Principal Act affected the decision in the earlier proceeding as regards a part of the petitioner's holding as ancestral Sir and Khudkasht. If they did not affect that question, it seems to us that a reopening of the earlier proceedings was not called for and the findings recorded and the decision reached in them could not be set aside in the instant proceedings. We shall examine the scope of Section 38-B of the Act in this regard. While examining its scope and effect, it will have to be borne in mind that judicial and legislative fields are distinct from one another. Courts cannot legislate while legislature cannot decide. In Madan Mohan Pathak v. Union of India, Ram Prakash Manchanda v. Union of India, AIR 1978 SC 50, it was held that an Act of legislature cannot annul a final judgment conferring rights on parties. It can only amend a law either prospectively or retrospectively, but the judgment rendered in a case stands unless reversed in an appeal or review. 8. IN Sri Prithvi Cotton Mills Ltd. v. Broach Borough Municipality, AIR 1970 SC 192 , it was held : "A court's decision must always bind unless the conditions on which it is based are so fundamentally altered that the decision could not have been given in the altered circumstances." We shall refer to the observations of the Supreme Court in Patel Gordhandas Hargovinddas v. Commissioner of Ahmedabad, AIR 1963 SO 1742, where the validity of Section 3 of a Gujarat Tax Validation Act was challenged. Section 3 of the Act provided as follow : "Notwithstanding anything contained in any judgment, decree or order of a Court, Tribunal or any other authority, no tax or rate assessed or purporting to have been assessed by a municipality under the relevant municipal law or any rules made thereunder on the basis of the capital value of a building or land as the case may be, or on the basis of a percentage of such capital value, and imposed, collected or recovered by the municipality at any time before the commencement of this Act shall be deemed to have invalidity assessed, imposed, collected or recovered by reason of the assessment being based on the annual letting value of the building or land as the case may be, and the imposition, collection and recovery of the tax so assessed and the provisions of the rules made under the relevant municipal law under which the tax or rate was so assessed shall be valid and shall be deemed always to have been valid and shall not be called in question merely on the ground that the assessment of the tax or rate on the basis of the capital value of the building or land, as the case may be, or on the basis of a percentage of such capital value was not authorised by law; and accordingly any tax or rate so assessed before the commencement of this Act and leviable for a period prior to such commencement but not collected or recovered before such commencement, may be collected and recovered in accordance with the relevant municipal law, and the rules made thereunder." 9. C. J. Hidayatullah who spoke for the Court observed : "Before we examine Section 3 to find out whether it is effective in its purpose or not, we may say a few words about validating statutes in general. When a legislature sets out to validate a tax declared by a court to be illegally collected under ineffective or an invalid law, the casue for ineffectiveness or invalidity must be removed before validation can be said to place effectively. The important condition of course is that the legislature must possess the power to impose the tax, for, if it does not, the action must ever remain ineffective and illegal. The important condition of course is that the legislature must possess the power to impose the tax, for, if it does not, the action must ever remain ineffective and illegal. Granted legislative competence, it is not sufficient to declare merely that the decision of the Court shall not bind for that is tantamount to reversing the decision in exercise of judicial power which the legislature does not possess or exercise. A Court's decision must always bind unless the conditions on which it is passed are so fundamentally altered that the decision could not have been given in the altered circumstances..." 10. THUS, where change in law affects an earlier decision of a competent court, the decision is not reversed, only the result is affected to the extent the change in the law affects it. In Municipal Corporation of the City of Ahmedabad v. The New Shrock Spg. and Wvg. Co. Ltd. A.I.R. 1970 SC 1292, the validity of sub-section (3) of the Bombay Provincial Municipal Corporation Act came up for consideration. That section provided as follows : "Notwithstanding anything contained in any judgment, decree or order of any court, it shall be lawful and shall be deemed always to have been lawful, for the Municipal Corporation of the City of Ahmedabad to withhold refund of the amount already collected or recovered in respect of any of the property taxes in which sub-section (1) applies till assessment or reassessment of such property taxes is made, and the amount of tax to be levied and collected is determined under sub-section (1). Provided that the Corporation shall pay simple interest............" The Supreme Court observed : "This is a strange provision. Prima facie that provision appears to command the Corporation to refuse to refund the amount illegally collected despite the orders of this Court and the High Court. The State of Gujarat was not well advised in introducing this provision. That provision attempts to make a direct inroad into the judicial powers of the State. The legislatures under our Constitution have within the prescribed limits, powers to make laws prospectively as well as retrospectively. By exercise of those powers, the legislature can remove the basis of a decision rendered by a competent court thereby rendering that decision ineffective. But no legislature in this country has power to ask the instrumentalities of the State to disobey or disregard the decisions given by Courts." 11. By exercise of those powers, the legislature can remove the basis of a decision rendered by a competent court thereby rendering that decision ineffective. But no legislature in this country has power to ask the instrumentalities of the State to disobey or disregard the decisions given by Courts." 11. IT was thus again made plain that the legislature can amend a law to render a decision ineffective but only to the extent it was affected by the change introduced. 12. IN Janapada Sabha Chindwara v. The Central Provinces Syndicate Ltd. AIR 1971 SC 57 , while considering the scope and effect of an amendment in Central Provinces, Local Self Government Act (4 of 1920), the Supreme Court observed as follows : "On the words used in the Act it is plain that the legislature attempted to overrule or set aside the decision of this Court. That in our judgment is not open to the legislature to do under our Constitutional scheme. It is open to the legislature within certain limits to amend the provisions of an Act retrospectively and to declare what the law shall be deemed to have been, but it is not open to the legislature to say that a judgment of a court properly constituted and rendered in exercise of its powers in a matter brought before it shall be deemed to be ineffective and the interpretation of law shall be otherwise." In State of Tamil Nadu v. M. Rayappa Gounder, AIR 1971 SC 231 , the Supreme Court considered the provisions of Section 7 of Madras Entertainment-tax (Amendment) Act, 1966. That section reads as follows : "Notwithstanding anything contained in the Act or in the Principal Act or any judgment, decree or order of any court, no assessment or reassessment or collection of any tax due or any payment for admission to any entertainment or any cinematograph exhibition which has escaped assessment to tax or which has been assessed at a rate lower than the rate at which it is assessable under Section 4 or 4-A after the Principal Act, made at any time after the date of the commencement of the Principal Act and before the date of the publication of this Act in the Fort St. George Gazettee shall be deemed to be invalid or ever to have been invalid in the ground only that such assessment or reassessment or collection was not in accordance with law and such tax assessed or reassessed or collected or purporting to have been assessed or reassessed or collected, shall for all purposes be deemed to be and to have been always validly assessed or reassessed or collected and accordingly "The Supreme Court held that Section 1 of the Act was invalid in so far as it attempted to validate invalid assessments without removing the basis of its invalidity." 13. A change in law can thus affect the decision of a court only to the extent that the decision becomes contrary to law. If the change in law does not touch the question decided by the competent court, the decision is not affected, and would continue to be binding between the parties. We shall examine the provisions of Section 38-B of the Act in the light of the above discussion. Section 38-B provides as follows : "No finding or decision given before the commencement of this section in any proceeding or any issue (including any order, decree or judgment) by any Court, tribunal or authority in respect of any matter governed by this Act, shall bar the retrial of such proceeding or issue under this Act, in accordance with the provisions of this Act as amended from time to time." 14. THIS provision to our mind was introduced to achieve the object of the various amendments introduced in the Principal Act and to give effect to them. Section 38-B, in our view, contemplates that if by the amendments made in the Principal Act certain findings or decisions had become contrary to law, those findings or decisions could be reopened and the principle of res judicata would not bar a retrial of those issues in accordance with the provisions of the Principal Act as amended. This provision, in our opinion, did not authorise the Ceiling authorities to ignore the decisions rendered or decrees passed by competent courts, tribunals or authorities in respect of matters which were not affected by the changes made in the Principal Act. Such decisions, in our opinion, would continue to be binding on the parties and would operate as res judicata between them, see State of Uttar Pradesh v. Nawab Hussain, AIR 1977 SC 1680 . Such decisions, in our opinion, would continue to be binding on the parties and would operate as res judicata between them, see State of Uttar Pradesh v. Nawab Hussain, AIR 1977 SC 1680 . No change was made in the law relating to ancestral Sir and Khudkasht land of a tenure-holder. Learned Standing Counsel was unable to point out any amendment in the Principal Act which had brought about any change in the law relating to tenures which were ancestral Sir and Khudkasht. In the earlier proceedings, it was found by the appellate authority that part of the petitioner's holding was ancestral Sir and Khudkasht land, and his son had a half share in it. The appellate authority, after excluding the share of the son, found that no land was surplus with the petitioner. Since the amendments made in the Principal Act did not affect this decision, the findings recorded and decision reached in the earlier proceedings could not be reopened and set aside by recourse to the provisions of Section 38-B of the Act. The authorities below, accordingly, erred in going behind the earlier decision which had become final between the parties, and reopening the question of ancestral Sir and Khudkasht nature of the petitioner's holding, and reaching a conclusion against him. 15. IT was urged on behalf of the respondent that, since the petitioner did not plead the interest of his son in the Consolidation proceedings, and was declared a Bhumidhar of the land in dispute, the objection in the present proceedings was barred by Section 49 of the Consolidation of Holdings Act. This contention is untenable for the following reasons. The Consolidation proceedings had concluded prior to the initiation of the earlier Ceiling proceedings. The objection, as regards the son's interest in the land in dispute, was raised in the earlier proceedings. The question was considered on merits and a finding was recorded in favour of the petitioner. That finding would operate as res judicata between the parties in the instant proceedings and the objection now sought to be raised would be barred by the principle of res judicata-See State of Uttar Pradesh v. JSawab Hussain (supra). Further, in the Consolidation proceedings, the petitioner was not required to set up a case for his son. That finding would operate as res judicata between the parties in the instant proceedings and the objection now sought to be raised would be barred by the principle of res judicata-See State of Uttar Pradesh v. JSawab Hussain (supra). Further, in the Consolidation proceedings, the petitioner was not required to set up a case for his son. If the son wanted a separation of his interest, he could raise an objection in those proceedings, and, if he did not do so, he may be barred from raising it in subsequent proceedings. But, since the petitioner was not called upon to raise an objection on behalf of his son, he could not be precluded from setting up a case in these proceedings that the land in dispute was ancestral Sir and Khudkasht, and he held it as Bhumidhar on his behalf as also on behalf of his son. Section 49 of the Consolidation of Holdings Act, in our opinion, is not attracted to bar the objection of the petitioner in the instant proceedings. 16. IN Chetanya Raj Singh v. Additional Civil Judge, Aligarh, 1911 AWC 289 it was held that the Prescribed Authority under the U.P. Imposition of Ceiling on Land Holdings Act was neither a civil nor a revenue court. Section 49 of the Consolidation of Holdings Act bars a subsequent proceeding before a civil or revenue court, the Ceiling authorities being not a civil or revenue court, Section 49 could not be attracted in these proceedings. Further, a declaration by the Consolidation Authorities that a tenure-holder was a Bhumidhar of a holding which was ancestral Sir and Khudkasht was not a declaration that his son had no interest in it. The person declared as Bhumidhar could hold the land on his behalf as also on behalf of his son. In the Consolidation proceedings no decision was reached that the petitioner's son had no interest in the holding. Thus those proceedings could not bar a plea by the petitioner that the land in dispute was ancestral Sir and Khudkasht in which his son had an interest. The decision in the earlier ceiling proceedings accordingly was binding on the parties, and the authorities in the instant proceedings erred in going behind the earlier decision. It was urged by the learned Standing Counsel that fresh redetermination could take place under Section 29 of the Act. The decision in the earlier ceiling proceedings accordingly was binding on the parties, and the authorities in the instant proceedings erred in going behind the earlier decision. It was urged by the learned Standing Counsel that fresh redetermination could take place under Section 29 of the Act. That section has no application in the instant case as none of the conditions of that section are satisfied. 17. THE petition accordingly succeeds and is allowed. The orders of respondents nos. 2 and 3 dated 20-9-1976 and 6-4-1976 are quashed. The petitioner shall be entitled to his costs. Petition allowed.