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2008 DIGILAW 1056 (ALL)

BUDHIMAN SINGH. v. DISTRICT JUDGE, FATEHPUR

2008-05-14

PRAKASH KRISHNA

body2008
JUDGMENT Hon’ble Prakash Krishna, J.—By means of the present writ petition the petitioner has sought a writ, order .or direction in the nature of Certiorari quashing the judgement and order dated 28th April, 1982 passed by the District Judge, Fatehpur and the judgement and order dated 28th December, 1981 passed by the Prescribed Authority appointed under the provisions of the U.P. Imposition of Ceiling on Land Holdings Act, 1960 (hereinafter referred to as the Act). 2. The present writ petition arises out of the proceedings under the U.P. Imposition of Ceiling on Land Holdings Act. The impugned orders have been passed on the application filed under Section 13-A of the said Act by the petitioner. 3. This is third round of litigation in the High Court. 4. Shri Raghuraj Singh, father of the petitioner, was the original tenure holder to whom a notice under the unamended provisions of the Act under Section 10 (2) was issued declaring 1.04 acre of land as surplus. After the amendment of the Act, reducing the ceiling area a second notice was issued to Raghuraj Singh and an area of 7.03 acres was proposed as surplus. No objection was filed by Shri Raghuraj Singh and the Prescribed Authority by the order dated 17.1.1976 declared 7.03 acres as surplus. Notification under Section 14 of the Act was issued thereafter. An application to set aside the said order was filed by the petitioner as in the meantime on 23rd of November, 1977 Raghuraj Singh had expired. On 31st of March, 1978 the said application was dismissed by the Prescribed Authority. The order of dismissal was confirmed in appeal by the District Judge by the judgement dated 19.7.1978. It was further confirmed by this Court as the writ petition No. 6859 of 1978 filed by the petitioner was dismissed on 11.8.1978. This was the first round of litigation. 5. Thereafter, the petitioner filed an application under Section 13-A of the Act claiming reduction of area due to the ceiling operation in the village on the plea that in the consolidation proceedings the tenure holder (petitioner) has been found to be entitled to a lesser area than the one with respect of which the ceiling of the petitioner’s father was determined. The said application was dismissed by the Prescribed Authority on 29.2.1979. The District Judge also dismissed the appeal by the order dated 13.8.1979, filed by the petitioner. The said application was dismissed by the Prescribed Authority on 29.2.1979. The District Judge also dismissed the appeal by the order dated 13.8.1979, filed by the petitioner. The order of the District Judge was subject matter of challenge in writ petition No. 9676 of 1979. The said writ petition after hearing the Counsel for the parties was allowed by the judgment and order dated 26th of November, 1980 and the matter was remanded to the Prescribed Authority with the direction that the ceiling authority will give effect to the reduction caused in area in consolidation to the petitioner. This was the second round of litigation in the Court. 6. To give effect to the above judgment and order of this Court, the Prescribed Authority reinitiated proceeding for determination of the ceiling area of the petitioner. On the basis of the material produced by the petitioner, the Prescribed Authority by the order dated 28th December, 1981 (Annexure-3) found that during the consolidation operation, area of the plot Nos. 954, 1760, 3035, 3335, 3110, 3356, 336, 3757 and 3767 have been reduced by 4-2-0. The reduction of the area was confirmed by the report of the Consolidation Officer. It reached to the conclusion that since the petitioner has half share and there has been total reduction of 1-7-10 in the area which comes to 0.35 acres. By giving the benefit of said reduction in the area in irrigated term, the petitioner has 1.44 acres land as surplus. The petitioner has no grievance with this part of the order of the Prescribed Authority. 7. It was also urged before the Prescribed Authority that as a result of consolidation operation, the plot Nos. 3109, 3110 have been held to belong to Sirtaj Kunwar widow of Chandra Bhushan and plot No. 985 has been held to belong to Ram Newaj son of Lakhpat Singh. Thus, the area of these plots which comes to 3-16-0 should be reduced from the holding of the petitioner. This plea was not found favour with the Prescribed Authority as no evidence in this regard was led before him. The contention of the petitioner was rejected. Consequently, the area 3-16-0 of these plots were not excluded from the holding of the petitioner for the purposes of determination of ceiling area by the Prescribed Authority. This plea was not found favour with the Prescribed Authority as no evidence in this regard was led before him. The contention of the petitioner was rejected. Consequently, the area 3-16-0 of these plots were not excluded from the holding of the petitioner for the purposes of determination of ceiling area by the Prescribed Authority. The said order was subject matter of ceiling appeal No. 2 of 1982 before the District Judge, Fatehpur who by its judgment and order dated 28th April, 1982 held that reduction in area in consolidation operation which took place after 8.6.1973 is not to be taken into consideration by the ceiling authorities except in the cases where the reduction has taken place due to contribution of land by the tenure holder for public purposes or due to increase in the valuation made by the consolidation authorities. In support thereof reliance was placed on a judgment of this Court in Chhanga Ram v. Third Additional District Judge and two others, 1981 AWC 677. The said judgment is subject matter of challenge in the present writ petition. 8. Heard Shri S.N. Bokhari, the learned Counsel for the petitioner and the learned Standing Counsel for the respondents. The learned Counsel for the petitioner submits only one point in support of the present writ petition. He submits that the benefit of reduction of area in the holding of a tenure holder should be extended in the proceedings under the Act for the purposes of determination of ceiling area of the tenure holder. The second limb of the argument is that on the earlier occasion this Court in writ petition No. 9676 of 1979 remanded the matter to the Prescribed Authority for this very purpose and it was not open to the authorities below to ignore the direction and judgment given by this Court in the aforestated writ petition. In other words, the learned Counsel for the petitioner submits that it was held by this Court that the petitioner is entitled to the benefit of reduction in area caused in holding as a result of consolidation proceeding even after 8th of June, 1973. Strong reliance was placed upon the Division Bench judgment of this Court on Satya Pal Singh v. State of U.P., 1979 AWC 217. Strong reliance was placed upon the Division Bench judgment of this Court on Satya Pal Singh v. State of U.P., 1979 AWC 217. The learned Standing Counsel, on the other hand, supports the impugned order and submits that the proceedings for determination of ceiling area having attained finality due to the dismissal of the first writ petition No. 6857 of 1978 and the order of the Prescribed Authority dated 17.1.1976 declaring an area 7.03 acres as surplus has attained finality, the question of determination of ceiling area is no longer open and cannot be reopened by filing an application under Section 13-A of the Act, giving rise to the present writ petition. On merits, the view taken by the Court below that the reduction in the area of the holding of the petitioner due to proceedings before the consolidation authorities wherein it was held that the petitioner is not entitled to hold certain plots due to defect in title will not entitle the petitioner to have the corresponding area reduced for the purposes of determination of ceiling area. 9. Considered the respective submissions of the learned Counsel for the parties and perused the record. As noticed hereinbefore that from the order of the Prescribed Authority dated 28th December, 1981 it appears that the orders of the consolidation authorities were not by the petitioner before it. The petitioner along with the supplementary affidavit dated 23rd of February, 2007 has filed the copies of the orders of the Consolidation Officer dated 2nd of March, 1976 and of Settlement Officer Consolidation dated 11.2.1977 as Annexures SA 1 and SA 2 respectively. The copy of the order of Deputy Director of Consolidation which is dated 8th of November, 1978 has already been annexed along with the writ petition as Annexure No. 2. Under the Act ceiling area of a tenure holder has to be determined with reference to the date i.e. 8th of June, 1973. Coming to the facts of the present case, the ceiling area was determined by the Prescribed Authority in pursuance the second notice issued under the amended Act on 7.1.1976 declaring 7.03 acres as surplus. Subsequent thereto the Consolidation Officer by the order dated 2nd of March, 1976 has found that name of Raghuraj Singh (father of the petitioner) be deleted from the plot Nos. Subsequent thereto the Consolidation Officer by the order dated 2nd of March, 1976 has found that name of Raghuraj Singh (father of the petitioner) be deleted from the plot Nos. 3109, 3110 and name of Sirtaj Kunwar be recorded as she has become Sirdar under Section 20/210 of the U.P. Z.A. & L.R. Act. The said order was confirmed by the Settlement Officer Consolidation in appeal No. 141. It, thus, emerges that the order of the Prescribed Authority under the Act is earlier in point of time than the order passed by the consolidation authorities. 10. The learned Counsel for the petitioner submits that under the Act there is no provision either explicit or implicit which prohibits the ceiling authorities to take into consideration or to give benefit of the area reduced due to the consolidation operation while calculating the ceiling area of a person concerned. He submits that the area of 3-16-0 which was reduced due to the consolidation operation should be excluded from the declared surplus area of the petitioner. Elaborating the argument, he submits that 8.6.1973, the date prescribed under the Act prohibits only those transfers or transactions in the Act which are not bonafide. Reduction in area of holding of a person after the appointed date i.e. 8.6.1973 due to bonafide litigation has to be excluded for the purposes of determination of ceiling area. 11. Reliance was placed on Udai Raj v. State of U.P., 2003 RD 473; Bali Ram Singh v. Additional Commissioner, Varanasi, 2002 RD 379; Devendra Nath Singh v. Civil Judge, 2000 RD 28 (SC), Satya Pal Singh v. State of U.P., 1979 AWC 217 etc. 12. The learned Counsel for the petitioner submits that in view of Section 38-B, as inserted in the Act w.e.f. 10-10-1975, the orders of the Consolidation Authorities should be given effect to. Section 38-B of the Act is reproduced below : “38-B. Bar against res judicata.—No finding or decision given before the commencement of this section in any proceeding or on 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.” 13. The submission that in view of Section 38-B of the Act the finding and decision given after commencement of the said section by any Court, tribunal or authority in respect of matter governed by the Ceiling Act shall be binding on the Ceiling Authorities, needs consideration. 14. Before invoking the said section it should be borne in mind that in the present case the order of the Prescribed Authority under the Ceiling Act is anterior to the orders passed under U.P. Consolidation of Holdings Act. The Prescribed Authority declared the surplus area by the order dated 15-1-1977 while in the proceedings under U.P. Consolidation of Holdings Act, the order was passed by the Consolidation Officer on 26-3-1982. Keeping the above fact in the background of mind, the applicability of Section 38-B is to be examined. 15. In Ram Charan v. State of U.P. and others, 1979 All. L.J. 166, a Full Bench of this Court has held that in the first place, Section 38-B dissolves the binding effect of findings given before 10th October, 1975. Such findings or decisions can be retried under the Ceiling Act. If the Ceiling Authorities have given their decisions before 10th October, 1975, those issues themselves are liable to be retried. If the decision is given after 10th of October, 1975, it will have a binding efficacy in Ceiling Proceedings, if it is not covered by any of the clauses of Section 5. It also considered an ‘illustration’ where a tenure holder’s ceiling area has been determined under Ceiling Act and the consolidation operation takes place subsequent thereto. In such situation, the Full Bench has observed as follows : “............A decision given by a ceiling authority would be binding on the parties even in consolidation proceedings. Consolidation proceedings respect final declaration of rights done by other Courts or authorities." (para 46). 16. In Devendra Nath Singh and others v. Civil Judge and others, AIR 1999 SC 2264 , after examination of provisions of Sections 13-A and 38-B of the Act, it has been observed : “......The power under Section 38-B merely indicates that if any finding of decision was there by any ancillary forum prior to the commencement of the said Section in respect of a matter which is governed by the Ceiling Act then such findings will not operate as res judicata in a proceeding under the Act. That would not cover the case where findings have already reached its finality in the very case under the Act...........” 17. The last sentence of the above quoted para is very important. Applying the above test in the present case, it is no longer in dispute that final determination of ceiling area has taken place by the Prescribed Authority as well as by the appellate Court on 15-1-1977 and 21-2-1984 respectively. Presently, no proceeding for determination or predetermination of ceiling area of the petitioners is pending either before any authority or Court. The order determining the ceiling area of the petitioners has attained finality and, therefore, Section 38-B of the Act, on its plain reading, is not at all attracted. 18. Escorts Farms Ltd. v. Commissioner, Kumaoun Division, Nainital and others, AIR 2004 SC 2186 lays down as follows : “Proceedings under the Ceiling Act, are not adversarial as are proceedings in suit The Ceiling Act is a legislation to give effect to the Directive Principles contained in Clauses (b) and (c) of Art. 39 of the Constitution. The State is advised by the Directive Principles contained in the Constitution to take necessary legislative measures so as to ensure social justice by equitable distribution of ownership and control of material resources and avoid concentration of wealth and means of production in few hands. The laudable social objectives sought to be achieved by the ceiling legislation is to take surplus land from the holders and distribute the same to the landless agricultural labourers and peasants surviving on agriculture. In applying the principles of res judicata, therefore, to the ceiling proceedings, the object of the Act cannot be lost sight of. All principles of res judicata contained in Section 11 of the CPC cannot be strictly and rigorously made applicable to ceiling proceedings. Section 38-B introduced by Amendment Act of 1976 with the transitory provisions made both in the Amendment Act No. 18 of 1973 and Act No. 20 of 1976 is a departure from the provisions of Section 11 of the Code of Civil Procedure and indicate non-applicability of bar of res judicata in ceiling proceedings under the Act. In view of the above discussions, the provisions of Section 38-B of the Act are not attracted on the facts of the present case. 19. In view of the above discussions, the provisions of Section 38-B of the Act are not attracted on the facts of the present case. 19. The learned Counsel for the petitioners then placed reliance upon a decision of Division Bench in Satya Pal Singh v. State of U.P. and others, 1979 All. L.J. 1259 wherein it has been held that the decisions of the Consolidation Authorities under U.P. Consolidation of Holdings Act are valid and are to be recognised in the proceedings under the Ceiling Act, subject of course, to the effect of Section 38-B as explained therein. A close reading of the said judgment would show that it proceeds on the footing that the proceedings under U.P. Consolidation of Holdings Act are based upon the system of valuation of land prescribed by that Act. The proceedings under the Ceiling Act are founded on area. The system of valuation provided by U.P. Consolidation of Holdings Act is not recognised by the Ceiling Act for determining the ceiling area as prescribed by the Ceiling Act. In this background it was held that if there is a change in area as a result of consolidation operation, the effect must be given to the said change by the Ceiling Authority. 20. In the above case the Court was concerned with regard to reduction or enlargement of the area of the holding due to valuation of land prescribed by the Consolidation of Holdings Act. This case was not concerned with regard to the reduction of area due to title dispute, therefore, the said decision is distinguishable. 21. The matter has been considered by a learned Single Judge in Changu Ram v. Illrd Additional District Judge, 1981 A.W.C. 677. The relevant paragraph is reproduced below : “The area of the tenure-holders stood reduced during consolidation proceedings. This point is common to both the petitions. It has seemed to me that the appellate Court did not have the benefit of the guidance which was laid down by the Division Bench of this Court in Satya Pal Singh’s case 1978 ALJ 186. It may again be emphasised that the reduction of area of the tenure-holder in consolidation proceedings may come about due to various reasons. It has seemed to me that the appellate Court did not have the benefit of the guidance which was laid down by the Division Bench of this Court in Satya Pal Singh’s case 1978 ALJ 186. It may again be emphasised that the reduction of area of the tenure-holder in consolidation proceedings may come about due to various reasons. One reason may be that on an adjudication of title by the Consolidation Authorities between rival claimants, a tenure-holder loses some land in the consolidation proceedings and thus there is a reduction of his area in the consolidation proceedings compared to what he held before the consolidation proceedings. The ceiling law does not grant any benefit to such a tenure-holder on account of such reduction during the consolidation proceedings brought about on account of the adjudication of title by the Consolidation Authorities, if such adjudication has taken place after 8-6-1973. However, very often reduction in the area of land during consolidation proceedings is brought about on account of the allotment of different plots with different valuations or on account of certain land of the tenure-holder being taken for public purposes etc., during the consolidation proceedings. The Division Bench in Satya Pal Singh’s case laid down that a tenure-holder should be entitled to the benefit of the reduction in the area during consolidation proceedings even if such reduction has taken place after 8-6-1973 because such reduction is brought about by the operation of law. In my view, the ratio laid down by the Division Bench should not be extended beyond that such as is warranted by the facts of that case. The facts of the said decision would not justify any interference that the reduction of area brought about after 8-6-1973 on account of title adjudication by the Consolidation Authorities should also be given effect to by the ceiling authorities. This inference will be wholly against the scheme of the Ceiling Act.” (Emphasis supplied) For the same reason, the other cases relied upon by the petitioners are distinguishable. 22. As noticed herein before, application filed under Section 13-A of the Act has given rise to the present litigation. It is apt to consider the scope and extent of the said section which is reproduced below for the sake of convenience : “13A. 22. As noticed herein before, application filed under Section 13-A of the Act has given rise to the present litigation. It is apt to consider the scope and extent of the said section which is reproduced below for the sake of convenience : “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 the notification under sub-section (1) 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) ....................................." On a plain reading of Section 13-A (1) it is evident that an application for predetermination of surplus land can be filed (i) within a period of two years from the date of notification under sub-section (1) of Section 14; (ii) rectification of any mistake; and (iii) The mistake must be apparent on the face of record. 23. On the fulfilment of all these three conditions cumulatively, an application under the aforestated section is maintainable. 24. The application for redetermination was filed on 16th January, 1979 i.e. within two years. The reduction of surplus land was sought for on the ground that the area of the tenure holder has been reduced in the consolidation operation due to title dispute decided against him. The Prescribed Authority has noticed in its order that the orders of the consolidation authorities are not on the record. 25. Recently, the Apex Court in State of U.P. and others v. Roshan Singh and others, (2008) 2 SCC 488 has examined more or less similar controversy. In this case after determination of the ceiling area, an application titled under Section 151, CPC was filed wherein a stand was taken that in consolidation proceedings, a different area was indicated and, therefore, the holding was reduced. The High Court took the view that as the reduction of area made during the consolidation operation is made for public purposes, the petitioner is entitled to the benefit of such reduction. The High Court took the view that as the reduction of area made during the consolidation operation is made for public purposes, the petitioner is entitled to the benefit of such reduction. While setting aside the judgment of the High Court, the Supreme Court observed that the application under Section 151, CPC is not maintainable as there is alternative remedy to challenge the order by way of appeal. It has been further observed that inherent powers cannot be used to reopen the ‘settled matter’. These powers can be resorted to when there are specific provision in the Act to deal with the situation. 26. In that view of the matter, it is difficult to say that there was any error apparent on the face of record which could have been rectified. Apart from the above, Section 13-A contemplates the rectification of any mistake apparent on the face of record which will not include a debatable question. The question as to whether the order of the Consolidation Officer which have been passed subsequent to the order of the Prescribed Authority will bind the ceiling authority is a debatable question and cannot form a basis for redetermination under Section 13-A of the Act. Even otherwise also the orders of the consolidation authorities having not been placed on the record before the Prescribed Authority do not form part of the “record” and therefore, the question of rectification of any mistake on the face of record does not arise. On this short ground also the application under Section 13-A of the Act is liable to be dismissed and the authorities below have not committed any error in rejecting the said application on other grounds. 27. In view of the above, there is no merit in the writ petition. The writ petition is dismissed. No order as to costs. ————