Nahar Singh v. Sub-Divisional Magistrate, Meerut — 1982 DIGILAW 1365 (ALL)

ORDER R.B. Lal, J. - By this writ petition under Article 226 of the Constitution the petitioner tenure-holder prays for the quashing of certain orders passed by the Prescribed Authority and the appellate authority. 2. The relevant facts are these : A notice under S. 10 (2) of the U.P. Imposition of Ceiling on Land Holdings Act 1961, (briefly the Act) was served on Nahar Singh, the tenure-holder on I7-1-1974. The tenure-holder filed an objection and alleged that plot No. 56 area 8 bighas. 3 hiswas was grove land and should be excluded from calculation of surplus land. He also claimed exemption of some other land on the ground that it was abadi, usar land, or land covered by nalis. He also added that he had transferred two plots to one Sheoraj by a sale deed in Aug. 1971. The Prescribed Authority held that plot No. 56 was a grove and there was no land surplus in the hands of the tenure-holder. This order was passed on 20-5-1974. The State filed an appeal which was dismissed on 28-4-1975. The definition of expression 'grove land' contained in S. 3 (8) of the Act was amended on 10-10-1975 with retrospective effect. Section 38-B was also introduced with effect from 10-10-1975 and it was declared that no finding or decision given before the commencement of the section, in any proceeding by any Court, tribunal or authority in respect of any matter governed by the Act. shall bar the retrial of such proceeding or issue under the Act in accordance with the provisions of the Act, as amended from time to time. S. 31 which contained transitory provisions, was also introduced by U.P. Act No. 20 of 1976. Sub-sec. (3) of S. 31 enabled the Prescribed Authority to re-determine surplus land within a period of two years from 10th Oct., 1975 notwithstanding any earlier determination of surplus land. In view of these legislative changes, the Prescribed Authority issued a fresh notice to the tenure-holder on 25-5-1977 showing that 4 bighas 8 biswas and 16 biswansis land was surplus in his hands. The tenure-holder again filed an objection and claimed exemption on the 5 counts as in his previous objection. The Prescribed Authority by its order dated 14-6-1979 accepted the pleas of the tenure-holder in respect of grove land and abadi and held that there was no surplus land in his hands. The tenure-holder again filed an objection and claimed exemption on the 5 counts as in his previous objection. The Prescribed Authority by its order dated 14-6-1979 accepted the pleas of the tenure-holder in respect of grove land and abadi and held that there was no surplus land in his hands. Some correction was carried out in this order on 16-6-1979. The State filed an appeal and the appeal was allowed on 17-9-1980 and the case was remanded back to the Prescribed Authority for a fresh decision. After remand, the tenure-holder led some oral evidence and relied on the documentary evidence which had been given earlier. The Prescribed Authority decided the case by order dated 19-2-1981 and held that there was no grove. It held that 3 bighas and odd area was surplus land in the hands of the tenure-holder. The tenure-holder filed an appeal before the District Judge and the appeal was dismissed on 1-8-1981. 3. In this writ petition three submissions have been made on behalf of the petitioner : (1) Under sub-sec. (3) of S. 31 of U.P. Act No. 20 of 1976 the Prescribed Authority could determine the surplus land within a period of two years from the 10th day of October, 1975, i.e. up to 10th Oct. 1977 only. In the instant case, fresh notice was issued on 25-5-1977 and the first order of re-determination was passed by the Prescribed Authority on 14-6-1979. This order was definitely passed after the expiry of the period of two years and was, therefore, barred by time and without jurisdiction. The other orders dated 17-9-1980, 19-2-1981 and 1-8-1981 were also for this reason without jurisdiction. (2) The finding of the Prescribed Authority on 19-2-1981 that there was no grove on plot No. 56 was vitiated by a legal error inasmuch as it was passed without considering the oral evidence led by the tenure-holder before the Prescribed Authority. In recording the finding, the entire material on the record was not taken into consideration. (3) Other grounds of objection raised by the tenure-holder were not decided either by the Prescribed Authority or by the appellate authority and the-case should be sent back to the Prescribed Authority for decision of those points, if the submissions Nos. (1) and (2) (supra) are not found acceptable. 4. Submission No. (1) (supra) is covered by ground No. 11 of the grounds mentioned in the petition. (1) and (2) (supra) are not found acceptable. 4. Submission No. (1) (supra) is covered by ground No. 11 of the grounds mentioned in the petition. Orders dated 14-6-1979 and 17-9-1980 are not mentioned in the prayer. It appears that the learned counsel failed to add these dates in the prayer by oversight. The prayer may, therefore, be taken for quashing the aforesaid four orders of the Prescribed Authority and the Appellate Authority. It appears that the tenure-holder had not urged before the Prescribed Authority that in view of sub-sec. (3) of S. 31 of U.P. Act No. 20 of 1976 it could not pass an order of re-determination of surplus land after 10th Oct., 1977 and all the proceedings after that date were without jurisdiction. This plea was also not taken up before the Appellate Authority. It has been taken for the first time in this writ petition. The learned counsel for the petitioner has submitted that the plea raises a question of jurisdiction of the Prescribed Authority and goes to the root of the matter. The plea is a pure question of law and does not involve ascertainment of fresh facts. Hence, such a plea can be raised for the first time in the writ petition, notwithstanding the fact that it was not raised before the Prescribed Authority or the Appellate Authority. In support of this submission the learned counsel has placed reliance on the observations contained in the Supreme Court decision Pioneer Traders v. Chief Controller of Imports and Exports, AIR 1963 SC 734 , Awadhoot v. State, AIR 1978 Bom 28 and Har Prasad v. Deputy Director, 1966 All LJ 123. In support of this submission the learned counsel has placed reliance on the observations contained in the Supreme Court decision Pioneer Traders v. Chief Controller of Imports and Exports, AIR 1963 SC 734 , Awadhoot v. State, AIR 1978 Bom 28 and Har Prasad v. Deputy Director, 1966 All LJ 123. 4-A. In the case of Pioneer Traders (supra) the Supreme Court observed : - "Where an authority, whether judicial or quasi judicial, has in law no jurisdiction to make an order, the omission by a party to raise before the authority the relevant facts for deciding that question, cannot clothe it with jurisdiction." In Awadhoot's case (supra) the Bombay High Court placed reliance on the aforesaid observation of the Supreme Court and held that : "If the matter raises a question of jurisdiction of a Tribunal, it is by now well-settled that such a contention can be raised for the first time even in a writ petition." In Har Prasad's case it was observed : "A ground raising a question which goes to the root of the matter as to jurisdiction or power of an authority, whose acts or orders have been brought up before the High Court in a petition under Article 226 of the Constitution, can be allowed to be raised if it otherwise does not require any further enquiry and no prejudice is caused to the opposite parties at the hearing." In the instant case, the facts relevant to submission No. 1 are already on the record. The submission raises a question of jurisdiction which may go to the root of the matter. There is nothing to show that raising of this plea for the first time in this writ petition would take the State by surprise and cause it prejudice. I am, therefore, of the view that the petitioner can raise this plea for the first time in this writ petition. 5. Now I take up the first submission of the learned counsel for the petitioner for consideration. Sub-sec. I am, therefore, of the view that the petitioner can raise this plea for the first time in this writ petition. 5. Now I take up the first submission of the learned counsel for the petitioner for consideration. Sub-sec. (3) of Section 31 reads thus :- "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, re-determine 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." The language of the above sub-section is very clear. This sub-section does not say that the proceedings for re-determination of surplus land in accordance with the provisions of the amended principal Act may be initiated within a period of two years from 10th day of October, 1975. It says that the Prescribed Authority is to re-determine the surplus land within the period of two years from the said date. This can only near that the final re-determination should be made by the Prescribed Authority within a period of two years from the 10th day of Oct., 1975. S. 12 of the Act also speaks of determination of Surplus land. This determination is final determination, so far as the Prescribed Authority is concerned. It will, therefore, be reasonable to take the view that re-determination of surplus land referred to in sub-sec. (3) means final re-determination and not mere initiation of fresh proceedings for re-determination of surplus land. If the intention of the Legislature was that the Prescribed Authority may initiate the proceedings within a period of two years from the 10th day of Oct., 1975, it would have said so explicitly by using appropriate language. The learned Standing Counsel has. not pointed to any other provision of the Act which would justify taking of the view that sub-sec. (3) refers only to initiation of proceedings for re-determination of surplus land within two years from the 10th day of Oct. 1975. No authority, wherein this aspect of sub-sec. (3) might have been considered, has been cited before me. not pointed to any other provision of the Act which would justify taking of the view that sub-sec. (3) refers only to initiation of proceedings for re-determination of surplus land within two years from the 10th day of Oct. 1975. No authority, wherein this aspect of sub-sec. (3) might have been considered, has been cited before me. I am of the view that the natural and reasonable interpretation of sub-sec. (3) is that the final order determining the surplus land in accordance with the provisions of the amended Act should be passed by the Prescribed Authority within a period of two years from 10th day of October, 1975. Any order of determination passed by the Prescribed Authority after the expiry of such period of two years would be barred by time, and without jurisdiction. 6. The order of determination of surplus land passed by the Prescribed Authority on 14-6-1979 was, therefore, clearly without jurisdiction. The subsequent order of remand dated 17-9-1980 passed by the Appellate Authority and the order of the Prescribed Authority dated 19-2-1981 passed after remand and the order of the Appellate Authority dated 1-8-1981 are also rendered illegal because the order dated 14-6-1979 was illegal and without jurisdiction. All the four orders, therefore, deserve to be quashed. The submission of the petitioner, therefore, succeeds. 7. The Second submission of the learned counsel for the petitioner is, in my opinion, not well-founded. The appellate Court considered the evidence regarding the grove land at great length and then held that plot No. 56 was not grove land as defined under the Act. It cannot be said that any part of the evidence led on this point was not considered by the appellate authority. The mere fact that a specific reference was not made to the oral statements made by the petitioner, would not mean that that evidence was not considered. The oral statement of the petitioner was self-serving, and was inconsistent with the inspection reports which were not challenged by the tenure-holder, and which were, therefore, rightly relied upon by the appellate Court. In these circumstances, it could not be said that the finding that plot No. 56 was not grove land, is vitiated by any legal error. The second submission is, therefore, not well-founded and is repelled. 8. In these circumstances, it could not be said that the finding that plot No. 56 was not grove land, is vitiated by any legal error. The second submission is, therefore, not well-founded and is repelled. 8. In its order dated 19-2-1981 the Prescribed Authority mentioned that no arguments were advanced on behalf of the tenure-holder on other points and no additional evidence was given. The Authority observed that the findings given by him earlier on these points would stand. The judgment of the learned Additional District Judge shows that only one point was raised before him in the appeal and it was with regard to plot No. 56 which was claimed as grove land. It means that no other point which was decided by the Prescribed Authority, was pressed before the appellate authority. The contention of the petitioner that other points were also urged before the appellate authority, but the same were not considered by it, cannot be accepted. There is no reason to doubt the correctness of the aforesaid observation contained in the appellate judgment. The affidavit of the counsel for the petitioner at the appellate stage, filed in the writ proceedings, in which it had been said that other points were also raised before the appellate authority, does not deserve any preference over the observation of the appellate authority. The appellate authority had no reason to make an incorrect observation. In regard to such an observation contained in judgment, the correct legal position has been explained by the Supreme Court in the decision State of Maharashtra v. Ram Das Shrinivas Nayak, AIR 1982 SC 1249 . There also, the counsel for the State of Maharashtra had challenged an observation made by the Bombay High Court in its judgment. Their Lordships of the Supreme Court said (at P. 1251) : "We are afraid that we cannot launch into an enquiry as to what transpired in the High Court. It is simply not done. Public Policy bars us. Judicial decorum restrains us. Matters of judicial record are unquestionable. They are not open to doubt. Judges cannot be dragged into the arena. Judgments cannot be treated as mere counters in the game of litigation. (Per Lord Atkinson in Somasundarsan v. Subaramanian, AIR 1926 PC 136 ). We are bound to accept the statement of the Judges recorded in their judgment, as to what transpired in Court. They are not open to doubt. Judges cannot be dragged into the arena. Judgments cannot be treated as mere counters in the game of litigation. (Per Lord Atkinson in Somasundarsan v. Subaramanian, AIR 1926 PC 136 ). We are bound to accept the statement of the Judges recorded in their judgment, as to what transpired in Court. We cannot allow the statement of the Judges to be contradicted by statements at the Bar or by affidavit and other evidence. If the Judges say in their judgment that something was done, said or admitted before them, that has to be the last word on the subject. The principle is well-settled that statements of fact as to what transpired at the hearing, recorded in the judgment of the Court, are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. If a party thinks that the happenings in Court have been wrongly recorded in a judgment, it is incumbent upon the party, while the matter is still fresh in the minds of the Judges, to call the attention of the very Judges who have made the record to the fact that the statement made with regard to his conduct was a statement that had been made in error (Per Lord Buckmaster in Madhusudan v. Chandrabati, AIR 1917 PC 30 ). That is the only way to have the record corrected." Their Lordships further observed : "So the Judge's record is conclusive. Neither lawyer nor litigant may claim to contradict it, except before the Judge himself, but nowhere else." 9. For the above reasons, I am not prepared to accept the contention that some other points remained to be decided. The other points are to be taken as decided and they were decided against the petitioner by the Prescribed Authority and those points were not pressed before the appellate authority. Submission No. 3, therefore, fails. 10. In view of my finding on the first submission made by the learned counsel for the petitioner, this writ petition must succeed. However, in view of the fact that this legal plea was not agitated earlier. I am inclined to direct the parties to bear their own costs of these proceedings. 11. The writ petition is accordingly allowed. 10. In view of my finding on the first submission made by the learned counsel for the petitioner, this writ petition must succeed. However, in view of the fact that this legal plea was not agitated earlier. I am inclined to direct the parties to bear their own costs of these proceedings. 11. The writ petition is accordingly allowed. The orders of the Prescribed Authority dated 14-6-1979 and 19-2-1981 and the orders of the appellate authority dated 17-9-1980 and 11-8-1981 are quashed. The parties shall bear their own costs.