Triloki Nath Goyal v. State of U. P — 1981 DIGILAW 217 (ALL)

ORDER R.R. Rastogi, J. - This petition arises out of proceedings under the U.P. Imposition of Ceiling on Land Holdings Act, hereafter 'the Act'. The petitioner was served with a notice and the statement under Sec. 10 (2) of the Act. He contested that notice. The Prescribed Authority, vide its order dated 31-12-1974, declared 22.51 acres of land as surplus with the petitioner. The petitioner filed an appeal against that order which was decided by Civil Judge, Roorkee, vide his judgment dated 17-7-1976. It was contended on behalf of the petitioner before the Appellate Court that his holding which was comprised of an area of 54.60 acres situated in village Majri Grant in the district of Dehradun could not be taken into consideration in view of Notification No. 5-3(1)/1972(327) published in the extraordinary gazette of Uttar Pradesh dated June 4, 1975, whereby the District of Dehradun was taken out of Meerut Division and was included in Garhwal Division which under S. 2 (ii) is exempt from the purview of the Act. The learned Civil Judge accepted this contention and held that there was no surplus land with the petitioner, and by his judgment dated 17th July, 1976, held that the petitioner had no surplus land. 2. The State of Uttar Pradesh filed a writ petition challenging that decision, before this Court and therein one of the grounds taken was that the learned Civil Judge had misread the date of the notice as 4th June, 1972 instead of 4th June, 1975. That writ petition was rejected in limine by this Court on 30th Aug., 1977. Thereafter an application was given under Ss. 151/152, C.P.C. by the State of Uttar Pradesh on 22nd Sept., 1978, before the District Judge, Saharanpur praying for review of the Appellate Order dated 17th July, 1976. That application has been allowed by the IV Addl. District Judge, Saharanpur, vide his order dated 20th August, 1979, on the ground that a mistake apparent on the face of the record had occurred in the aforesaid Appellate Order, inasmuch as the date of the notification had been misread as June 4, 1972, instead of June 4, 1975, and that being so, at the relevant time Dehradun being in Meerut division the proceedings under the act had been rightly taken. According to the learned Additional Judge this mistake could be corrected under Sec. 151 as also under Section 152, C.P.C. This judgment forms the subject-matter of challenge in the present writ petition. 3. On behalf of the petitioner three submissions were made before me : firstly, that in the judgment of the Appellate Court dated 17-7-1976 there was no misreading of the date of the relevant notification and even in the review application no such ground was taken. The second submission made was that there is no provision in the Act which permits the making of an application for review and that being so, the impugned order was incompetent. The last submission was that the Appellate Court could not exercise inherent jurisdiction under Section 151, Civil P. C. because the Appellate Order dated 17-7-1976 had merged in this Court's order. These submissions were controverted by the learned Standing Counsel. 4. On a careful consideration of the submissions made before me I do not find any merit in them. I shall discuss them one by one. In regard to the first contention admittedly the petitioner had 54.60 acres land in village Majri Grant which is in the district of Dehradun. This district was earlier in Meerut division. But, by notification No. 5-3(1)/1972(327) dated 4th June, 1975, it was taken out from Meerut division and was included in Garhwal division. It would be relevant to reproduce the notification at this place. It reads :- "The Governor is pleased to alter with effect from the date of publication of the notification in the gazette the limit of Meerut and Garhwal Divisions by including Dehradun district within the jurisdiction of Garhwal division, excluding the said district from the limit of Meerut division provided that nothing in this notification shall affect any legal proceedings already commenced or pending in any Court which has hitherto exercised its jurisdiction in respect of the said district." It would be seen that this alteration was not to affect any legal proceedings already commenced or pending in any Court. 5. 5. Section 2 of the Act provides that the State Government may, by notification in the official gazette, apply the provisions of this Act, subject to such exceptions or modifications not affecting the substance, as the circumstances of the case may require, to the areas mentioned below - "(ii) The Kumaon and Garhwal Division except the Kashipur Sub-Division and such areas of Terai and Bhabar Sub-Division where no intermediaries exist." In this sub-clause the words "Kumaon and Garhwal" divisions were substituted for "Uttarkhand and Kumaon" divisions by U.P. Ordinance No. 31 of 1975 with effect from 10-10-1975 which was subsequently replaced by the U.P. Act 20 of 1976. It is, therefore, clear that the present proceedings which had started prior to the coming into effect of the aforesaid notification would not have been affected by it. The question is as to whether or not the appellate Court in its judgment dated 17th July, 1976, misread the date of the notification as 4th June, 1972, instead of the 4th June, 1975. A copy of the judgment is Annexure 2 to the writ petition As noted above one of the contentions urged on behalf of the petitioner before him was that his holding situated in Majri grant in the district of Dehradun could not be considered for the purpose of ceiling under the Act and a copy of the aforesaid notification was filed and it was also contended that on 8th June, 1973, the district of Dehradun formed part of Garhwal Division and not of Meerut Division and Section 2 of the Act was referred to this connection. The learned Civil Judge referred to that provision and observed that it is only when the State Government by means of a Notification extends the provisions of this Act to Garhwal Division, then alone this Act would be applicable to that division and since there had been no such notification, the entire 54.60 acres situated within the district of Dehradun is not covered by the provisions of this Act. It is of course correct that the learned Civil Judge has not specifically mentioned the date of the notification, but I do not think that any doubt can be entertained in regard to the identity of the notification which he was referring to. It is of course correct that the learned Civil Judge has not specifically mentioned the date of the notification, but I do not think that any doubt can be entertained in regard to the identity of the notification which he was referring to. The view taken by him could be possible only if the date of that notification was read as 4th June, 1972 instead of 4th June, 1975. The contention of the learned counsel for the petitioner, therefore, is rather technical and misconceived. Further, in the application for review it was stated that Dehradun district had been taken out of Meerut Division and included in Garhwal Division by Notification dated 4th June, 1975 and the learned Civil Judge had accepted the contention and it appeared that his attention had not been invited to the last part of that notification which says that it shall have no application to the pending proceedings. It cannot be said, therefore, that a misreading of the notification was not made the basis of the application. In my opinion, therefore, there was a clear misreading in the judgment of the appellate Court dated 17th July, 1976, of the date of the aforesaid notification. Instead of the 4th June, 1975, it was read as 4th June 1972 and on that view it was held that the provisions of the Act were not applicable to District Dehradun. In the application for review also misreading of the Notification was mentioned as the basis of the application. In my opinion, therefore, in the aforesaid appellate judgment there was a manifest error apparent on the face of the record. 6. The question, however, is as to whether an application for correction of this mistake was maintainable. This question envisages two aspects; firstly whether such an application is maintainable under the Act and secondly whether it could have been presented before the appellate Court in view of the fact that a writ petition against that judgment had been dismissed by this Court in limine on the ground that it was barred by time. It would not be correct to treat this application, a copy of which is Annexure 4 to the writ petition, as an application for review. This application was given under Section 151, C.P.C. For the consideration of the first aspect of the case noted above reference will have to be made to Ss. It would not be correct to treat this application, a copy of which is Annexure 4 to the writ petition, as an application for review. This application was given under Section 151, C.P.C. For the consideration of the first aspect of the case noted above reference will have to be made to Ss. 37 and 38 of the Act. Section 37 provides for powers of officers and authorities in hearing and disposal of the objections and the procedure to be followed. Similarly Section 38 provides for powers of the appellate Court and the procedure to be followed by it. It would be useful to reproduce these sections at this place. "37. Any officer or authority holding an enquiry or hearing an objection under this Act, shall, in so far as it may be applicable, have all the powers and privileges of a Civil Court, and follow the procedure laid down in the Civil P. C., 1908, for the trial and disposal of suits relating to immovable property. 38.(1). In hearing and deciding an appeal under this Act, the appellate Court shall have all the powers and the privileges of a Civil Court and follow the procedure for the hearing and disposal of appeals laid down in the Civil P. C., 1908 (2) Where under the provisions of this Act, an appeal has to be heard by the District Judge, he may either hear the appeal himself or transfer it for hearing to any Additional District Judge, Civil Judge or Additional Civil Judge, subordinate to him" I need not elaborate on the scope of S. 37. Suffice it to say that under this section the Prescribed Authority or any other officer holding an enquiry or hearing an objection under this Act has been vested with all the powers and privileges of a Civil Court and further it is the procedure laid down in the Code for the trial and disposal of suits relating to immovable property which is to be followed. As for the appellate Court hearing and deciding an appeal under this Act, as well all the powers and privileges of a Civil Court have been conferred. Further, the appellate Court is to follow the procedure for the hearing and disposal of appeals laid down in the Code. As for the appellate Court hearing and deciding an appeal under this Act, as well all the powers and privileges of a Civil Court have been conferred. Further, the appellate Court is to follow the procedure for the hearing and disposal of appeals laid down in the Code. The question is as to whether an appellate Court while hearing and deciding an appeal under this Act is an authority or Tribunal of a limited jurisdiction and cannot be regarded a Court. In my opinion on a plain reading of the above provision it is clear that an appellate Court while hearing and deciding an appeal under this Act is not an authority or Tribunal of a limited jurisdiction. It is the Civil Court vested with all the powers and privileges conferred under the Code and for hearing and disposal of appeals it is required to follow the procedure contained in the Code. This being so, the decision of the Full Bench of our Court in Syed Ajaz Ali Khan v. Mohd. Rafiq, AIR 1974 All 178 : (1974 All LJ 165), on which considerable reliance was placed on behalf of the petitioner will not be applicable. The ratio of that case is that the provisions of Sections 144 and 151, Civil P. C. apply to Courts only and not to authorities and tribunals and in the absence of an express statutory provision an authority or tribunal cannot order restitution ex-debito justitiae. It has been further, laid down that an authority or tribunal of limited jurisdiction not being a Court, can have no inherent power, unless the statute confers such a power on them and in the absence of any such conferment of power, the authority or tribunal can pass only such orders as the provisions of the Act under which they are created, provide for. Special authorities and tribunals are constituted under special statutes and for special objects and therefore it is not possible to imply inherent powers in them. That was a case under U.P. Act 3 of 1947 and it was held that the power to restore occupation under Section 7-A of that Act by dispossessing the unauthorised occupation cannot be justified by invoking inherent jurisdiction which does not exist in an authority or tribunal, or by relying upon the equitable principles of restitution. 7. That was a case under U.P. Act 3 of 1947 and it was held that the power to restore occupation under Section 7-A of that Act by dispossessing the unauthorised occupation cannot be justified by invoking inherent jurisdiction which does not exist in an authority or tribunal, or by relying upon the equitable principles of restitution. 7. The ratio of this decision will not have any application to an appellate Court while hearing and deciding an appeal under the Ceiling Act. The provisions of the Ceiling Act do not circumscribe the powers of the appellate Court. It is not an authority or tribunal of limited jurisdiction. It is a Civil Court having all the powers and privileges conferred under the Civil P. C. In hearing and deciding an appeal under the Ceiling Act it is required to follow the procedure laid down in the Code for the hearing and disposal of the appeals. Section 107 of the Code lays down the powers of an appellate Court. It says that subject to such conditions and limitations as may be prescribed, an appellate Court shall have powers to determine a case finally, to remand a case, to frame issues and refer them for trial and to take additional evidence or to require such evidence to be taken. Sub-section (2) says that subject as aforesaid, the appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein. In other words subject to the conditions enumerated above the powers of an appellate Court under the Code are co-extensive with the powers of the Courts of original jurisdiction and hence an appellate Court while hearing and deciding an appeal under the Ceiling Act has subject to the limitations noted above, the same powers as the prescribed authority or the Civil Court has in respect of suits relating to immovable property. A consideration of the powers of the appellate Court while hearing and deciding an appeal under the Ceiling Act from this point of view would squarely meet the contention advanced on behalf of the petitioner that in view of Section 13-A of the Act Sections 151 and 152, C.P.C. would be available to the Prescribed Authority but not to the appellate authority and that indicates that the intention of the legislature was that Section 38 does not comprehend powers of review or rectification of any mistake apparent on the face of record. It is correct that under S. 13-A the Prescribed Authority has been empowered to rectify any mistake apparent on the face of record within a period of two years from the date of notification under S. 14(4). That, however, does not mean that while considering the powers of the prescribed authority as conferred under S. 37 and of the appellate Court as conferred under Section 38 any such distinction is to be drawn because, as I have illustrated above, an appellate Court in view of Section 107, C.P.C. subject to certain conditions has powers co-extensive with the powers of a Court of original jurisdiction. Apart from this a Court is not only entitled but is bound to brush aside a mere technicality which stands in the way of justice and to amend such mistake, slips or omissions as may appear to prevent justice in order to give effect to the real and substantial rights of the parties. Sections 151, 152 and 153 are just as applicable to Courts of first instance as to Courts of appellate jurisdiction and the appellate Court ought to take steps by way of amendments, which were clearly open to the first or other lower Court, vide Udhishter Singh v. Kausilla, (1916) 34 Ind Cas 79 : ( AIR 1917 All 443 ). 8. In my opinion, therefore, the impugned application was certainly maintainable under Section 151 of the Civil P. C. and the appellate Court could correct the error which, as held above, was apparent on the face of the record. 9. 8. In my opinion, therefore, the impugned application was certainly maintainable under Section 151 of the Civil P. C. and the appellate Court could correct the error which, as held above, was apparent on the face of the record. 9. Coming to the other aspect of the question involved, according to the learned counsel for the petitioner since the writ petition was dismissed summarily by this Court, it would be taken that the appellate order merged in the order passed by this Court and hence an application under Section 151, C.P.C. could not be moved before the appellate Court. Reliance was placed in support of this contention on Durga Singh v. Wahid Raza, 1964 All LJ 817; Sheodan Singh v. Daryao Kunwar, AIR 1966 SC 1332 : (1966 All LJ 578) and Gulab Chand v. State of Gujarat, AIR 1965 SC 1153 . 10. I do not find any merit in this contention either and the decisions cited do not help the petitioner in this behalf. In Durga Singh's case (1964 All LJ 817) (supra) the view taken was that the doctrine of merger applies even where a second appeal has been dismissed by the High Court summarily under Order 41, Rule 11, C.P.C. I do not think that this decision will be applicable because proceedings by way of writ petition cannot be treated as a continuation of the appeal proceedings. 11. In Sheodan Singh, (1966 All LJ 578) (supra) the scope of the expression "heard and finally decided" occurring in Section 11, C.P.C. formed the subject-matter of consideration and the view taken was that a decision given in a former suit by the trial Court for want of jurisdiction or for default of plaintiff's appearance or on the ground of non-joinder or misjoinder of parties or causes of action or such other defects and not on the merits of the case would not be res judicata in a subsequent suit. In Gulab Chand's case ( AIR 1965 SC 1153 ) (supra) the scope of Section 11, C.P.C. and its application to decisions given in writ petitions came up for consideration. In Gulab Chand's case ( AIR 1965 SC 1153 ) (supra) the scope of Section 11, C.P.C. and its application to decisions given in writ petitions came up for consideration. The view taken was that the provisions of Section 11, Civil P. C. are not exhaustive and on the general principle of res judicata the decision of a High Court on writ petition under Article 226 of the Constitution on the merits on a matter after contest will operate as res judicata in a subsequent regular suit between the same parties with respect to the same matter. These cases, therefore, are not authorities on the question under consideration. However, they lay down that the general principle of res judicata would apply to decisions given on writ petition under Article 226 on the merits of a matter after contest. 12. Under sub-section (2) of Section 13 of the Ceiling Act it has been provided that the decision of an appellate Court shall be final and conclusive and shall not be questioned in any Court of law. I need hardly emphasise that an appeal is a continuation of the original proceedings but a writ petition is not a continuation of the appeal proceedings. Apart from this Section 141 of the Civil P. C. says that the procedure provided in this Code in regard to suits shall be followed as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction. The explanation to this section, however, says that the expression "proceedings" in this section includes proceedings under Order 9 but does not include any proceedings under Article 226 of the Constitution. In other words the procedure provided in the Code in regard to suits is not to be followed in proceeding under Article 226 of the Constitution. 13. In Daryao v. State of U. P., AIR 1961 SC 1457 , a preliminary objection was taken to the maintainability of the writ petition under Article 32 of the Constitution on the ground that the petitioners had moved the High Court for a similar writ under Article 226 and the High Court had rejected those petitions. 13. In Daryao v. State of U. P., AIR 1961 SC 1457 , a preliminary objection was taken to the maintainability of the writ petition under Article 32 of the Constitution on the ground that the petitioners had moved the High Court for a similar writ under Article 226 and the High Court had rejected those petitions. The argument was that the dismissal of the writ petition filed by a party for obtaining an appropriate writ creates a bar of res judicata against similar petitions filed in the Supreme Court under Article 32 on the same or similar facts and praying for the same or similar writ. The view taken by the Supreme Court was that if a writ petition filed by a party under Article 226 is considered on the merits as a contested matter and is dismissed the decision, thus, pronounced would continue to bind the parties unless it is otherwise modified or reversed by appeal or other appropriate proceedings permissible under the Constitution. It would not be open to a party to ignore the said judgment and move the Supreme Court under Article 32 on the same facts and for obtaining the same or similar orders or writs. If the petition filed in the High Court under Article 226 is dismissed not on the merits but because of the laches of the party applying for the writ or because it is held that the party had an alternative remedy available to it, then the dismissal of the writ petition would not constitute a bar to the subsequent petition under Article 32 except in cases where and if the facts thus found by the High Court may themselves be relevant even under Article 32. If a writ petition is dismissed in limine and an order is pronounced in that behalf, whether or not the dismissal would constitute a bar, would depend upon the nature of the order. If the order is on the merits it would be a bar, if the order shows that the dismissal was for the reason that the petitioner was guilty of laches or that he had an alternative remedy it would not be a bar except in cases indicated above. 14. If the order is on the merits it would be a bar, if the order shows that the dismissal was for the reason that the petitioner was guilty of laches or that he had an alternative remedy it would not be a bar except in cases indicated above. 14. In the present case the writ petition filed by the State was dismissed in limine for the reason that the State was guilty of laches and hence it cannot be said that the appellate order merged in that order. On this view, therefore, the impugned application was rightly presented before the appellate Court. 15. In view of the foregoing discussion the petition fails and is dismissed. There shall be no order as to costs. The interim order dated 9-11-79 is hereby vacated.