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2004 DIGILAW 2200 (ALL)

Shanker Lal Pandey v. State of U. P.

2004-11-04

KRISHNA MURARI

body2004
JUDGMENT Krishna Murari, J.—Heard Sri D.P. Singh, learned counsel for the petitioner and learned standing counsel for the respondents. 2. The question involved in the present petition is about scope and interpretation of Section 13A of U.P. Imposition of Ceiling on Land Holdings Act, 1960 (hereinafter referred to as ‘the Act’). The undisputed facts are that the petitioner was served with a notice dated 10.12.1975 under Section 10 (2) of the Act proposing to declare an area of 4.13 acres in terms of irrigated land as surplus. The petitioner contested the notice by filing objection stating therein that bhumidhari land detailed in the statement in C.L.H. form 3 was ‘sir Khudkast’ and was inherited by him along with his brother Lachhi in equal shares. Lachhi executed a Will in his favour on the basis of which his name came to be recorded in the revenue record on the entire land after the death of Lachhi. It was stated that the said Will was subject-matter of Suit No. 23 of 1973 for cancellation and possession filed by Smt. Munni Devi w/o of deceased Lachhi which was decreed by the trial court on 9.1.1974 and Civil Appeal No. 107 of 1974 was pending, as such the said land was liable to be excluded from his holding. The prescribed authority vide order dated 15.6.1976 confirmed the notice and declared 4.13 acres in terms of irrigated land as surplus in the hands of the petitioner. Aggrieved the petitioner filed an appeal which was partly allowed and the case was remanded back to the prescribed authority to redetermine the ceiling area after treating certain plots as unirrigated and single crop producing land. In the meantime, Civil Appeal No. 107 of 1974 came to be dismissed on 19.8.1977 and the decree of the trial court cancelling the Will was confirmed. This judgment was not brought on record of the prescribed authority by the petitioner. The prescribed authority vide order dated 23.3.1979 recalculated the ceiling area in accordance with the direction of the appellate court and declared 1.16 acres in terms of irrigated land as surplus. No appeal was filed against this judgment and the same was allowed to become final. 3. Simultaneously, the consolidation proceedings were also going on wherein the old holding of the petitioner lost its identity and new plots were allotted in his chak. No appeal was filed against this judgment and the same was allowed to become final. 3. Simultaneously, the consolidation proceedings were also going on wherein the old holding of the petitioner lost its identity and new plots were allotted in his chak. Since plot No. 535 a part of which was declared surplus by the prescribed authority vide order dated 23.3.1979 also changed hands during consolidation, consequently, an amended C.L.H. was issued to declare new plot No. 824 as surplus in place of old plot No. 535. This prompted the petitioner to move an application under Section 13A of the Act for redetermination of the ceiling area on the following grounds : (a) Area of his holding reduced during consolidation should be excluded while calculating the ceiling area ; (b) After the decree of the civil court cancelling the Will in his favour, the share of his brother Lachhi was liable to be excluded from his holding ; and (c) He should be permitted to give a fresh choice. 4. The prescribed authority rejected the said application on 6.8.1986. The appeal filed by the petitioner also came to be dismissed vide order dated 6.9.1988. The present writ petition has been filed challenging the aforesaid two orders. 5. It has been vehemently urged by the learned counsel for the petitioner that application under Section 13A of the Act was wrongly rejected. There was a mistake apparent on the face of the record as the authorities wrongly clubbed the share of his deceased brother Lachhi with his holding even after cancellation of Will by the civil court. It was further contended that the application was wrongly held as barred by time and the benefit of reduction of the area during consolidation ought to have been allowed. 6. In reply it has been urged by the learned standing counsel that order dated 23.3.1979 passed by prescribed authority became final between the parties and the matter cannot be reopened under Section 13A of the Act on new fact which may have come into existence after the said judgment. 7. I have considered the rival submissions advanced on behalf of the learned counsel for the parties and perused the records of the writ petition. 8. 7. I have considered the rival submissions advanced on behalf of the learned counsel for the parties and perused the records of the writ petition. 8. The application filed by the petitioner was dismissed by the prescribed authority on the ground that earlier judgment of the prescribed authority dated 23.3.1979 became final between the parties and the question of effect of decree of civil court cancelling the Will and reduction of area during consolidation cannot be reopened in proceeding under Section 13A of the Act. The application of the petitioner was also dismissed as barred by limitation. The said order of the prescribed authority was confirmed by the appellate court. The basic question which arises for consideration is the maintainability of the application under Section 13A of the Act in the facts and circumstances of the case. Section 13A of the Act provides as under : “13A. Re-determination of surplus land in certain cases.—(1) The prescribed authority may at any time, within a period of two years from the date of notification under [sub-section (4) of Section 14] rectify any mistake apparent on the face of the record : Provided that no such rectification which has the effect of increasing the surplus land shall be made, unless the prescribed authority has given notice to the tenure-holder of its intention to do so and has given him a reasonable opportunity of being heard. (2) The provisions of Sections 10, 11, 12, 12A, 13, 14, 15 and 16 shall mutatis mutandis apply in relation to any proceeding under sub-section (1), and for purposes of application of Section 10, the notice under the proviso to sub-section (1) shall be deemed to be a notice under Section 9.” 9. A reading of the section makes it clear that the prescribed authority has been vested with the jurisdiction to correct any mistake apparent on the face of record within a period of two years from the date of notification under Section 14 of the Act. The expression “mistake apparent on the face of the record” occurring in the section has been subject-matter of judicial interpretation in a number of decisions and it has been well-settled by judicial pronouncement that no mistake can be said to be apparent on the face of record which requires evidence to be tendered for establishing the same. The expression “mistake apparent on the face of the record” occurring in the section has been subject-matter of judicial interpretation in a number of decisions and it has been well-settled by judicial pronouncement that no mistake can be said to be apparent on the face of record which requires evidence to be tendered for establishing the same. Reference may be made to the decision of the Hon’ble Apex Court in the case of Tungabhadra Industries Limited v. Government of Andhra Pradesh, AIR 1964 SC 1372 and that of this Court in the case of Chandra v. State, 1980 ALJ 705 and State of U.P. v. Dev Karan, 2002 (2) AWC 1340 (SC) : 2002 (93) RD 221. 10. In the facts of the instant case, the judgment of the civil court cancelling the Will came into existence on 9.8.1977 when the proceedings after remand by the appellate authority were pending before the prescribed authority and which came to be decided on 23.3.1979. Thus, it was always open for the petitioner to have filed the final judgment of the civil court dated 9.8.1977 before the prescribed authority to establish that share of his brother Lachhi was not liable to be clubbed with his holding. However, he failed to do so and allowed the judgment of the prescribed authority dated 23.3.1979 to become final. It is not necessary for this Court to enter into the question as to what manner the judgment of the civil court cancelling the Will would have been considered by the ceiling authorities, if the same was brought before them. Since the judgment of the civil court was not before the ceiling authorities, its non-consideration cannot amount to a mistake apparent on the face of the record, enabling them to invoke Section 13A of the Act. 11. Similarly, the benefit of the area which was reduced during consolidation cannot be allowed to the petitioner in proceeding under Section 13A of the Act. It was always open for the petitioner to have claimed the said benefit during the proceeding under Section 10 (2) of the Act, if the reduction was brought about during the pendency of the ceiling proceedings. It was always open for the petitioner to have claimed the said benefit during the proceeding under Section 10 (2) of the Act, if the reduction was brought about during the pendency of the ceiling proceedings. However, if the petitioner failed to avail the said benefit or if the reduction was brought about after finalisation of the proceeding under Section 10 (2) of the Act, then in both contingencies it is not open for the petitioner to claim the said benefit by reopening the proceedings under Section 13A of the Act. 12. In view of the aforesaid facts, it cannot be said that there was any error apparent on the face of record in the order of the prescribed authority dated 23.3.1979, which could have empowered him to reopen the proceedings under Section 13A and review the order. The section does not empower the prescribed authority to reopen the proceedings, which have become final under Section 10 (2) of the Act, on the basis of facts of evidence which could have been brought on record during the pendency of the proceedings but were not. Therefore, the application filed by the petitioner under Section 13A of the Act was legally not maintainable. 13. Learned counsel for the petitioner has urged a number of other grounds assailing the impugned judgments. However, since I have come to the conclusion that the application filed by the petitioner under Section 13A of the Act was itself not maintainable, it is unnecessary to traverse and consider the said arguments advanced on behalf of the petitioner. 14. In view of the aforesaid discussions, the application filed by the petitioner under Section 13A of the Act being legally not maintainable has rightly been rejected. The orders impugned in the writ petition do not call for any interference by this Court. 15. In the result, the writ petition fails and is dismissed. 16. However, in the facts and circumstances there shall be no order as to costs.