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2009 DIGILAW 2862 (ALL)

RAM SAHODAR v. STATE OF U. P.

2009-08-18

A.P.SAHI

body2009
JUDGMENT Hon’ble A.P. Sahi, J.—Heard learned counsel for the petitioner and the learned Standing Counsel for the respondents. The proceedings arise out of orders passed under the U.P. Imposition of Ceiling on Land Holdings Act, 1960 (hereinafter referred to as ‘the Act’). 2. The present writ petition has been preferred against the order dated 3.7.1992 passed by the learned Additional Commissioner, Jhansi Division, Jhansi, whereby the appeal filed on behalf of the State, questioning the order of the Prescribed Authority dated 25.10.1991, has been allowed and the land to the tune of 9.84 acres in the irrigated sense has been declared as surplus in the hands of the petitioner. 3. Learned counsel for the petitioner contends that the order is erroneous, inasmuch as, the order dated 25th May, 1978 passed by the Prescribed Authority, whereby only an area of 1.24 acres has been declared surplus, had become final and there was no further land available so as to reopen the entire proceedings on the principles of Section 38-B of the Act, 1960. Learned counsel for the petitioner contends that the proceedings were not ex-parte and had been decided upon an order of remand having been passed by the then Appellate Authority on two specific issues. It is urged that the impugned order incorrectly without appreciating the facts on record on the issue of ex-parte proceedings has caused prejudice. The Appellate Authority has proceeded to reopen the entire case, which was impermissible in law. He contends that the declaration of the land as surplus in the hands of the petitioner has attained finality and, therefore, the authority could not have exceeded its jurisdiction by restoring an order which had already been set aside and had been finalized by the Prescribed Authority on 25.5.1978. 4. Learned Standing Counsel, on the other hand, contends that, as a matter of fact, the order dated 25.5.1978 was ex-parte and had proceeded on an incorrect assumption and, therefore, the Additional Commissioner was justified in reopening and rehearing the entire matter and restore the earlier order of the Prescribed Authority passed in the year 1976. 5. Having heard learned counsel for the parties, the facts shorn of details are that a notice was issued to the petitioner’s father late Prabhu Dayal, whereafter vide order dated 29.6.1976 the Prescribed Authority declared an area of 9.84 acres as surplus. 5. Having heard learned counsel for the parties, the facts shorn of details are that a notice was issued to the petitioner’s father late Prabhu Dayal, whereafter vide order dated 29.6.1976 the Prescribed Authority declared an area of 9.84 acres as surplus. The petitioner’s father late Prabhu Dayal preferred an appeal bearing Ceiling Appeal No. 877 of 1976 and the said appeal was allowed on 3.11.1976. A copy of the judgment in the said appeal is Annexure 5 to the writ petition. The matter was remanded calling upon the Prescribed Authority to ascertain the fact as to whether Ram Sahodar was major at the relevant date or not and further the impact of the consolidation proceedings which brought about the change in the nature of the chaks that had earlier been carved during the consolidation operation. Upon remand, the matter was gone into by the Prescribed Authority and vide order dated 25.5.1978 the Prescribed Authority found that an area of 1.24 acres was only surplus in the hands of the tenure holders. This order was not challenged by the State and as such the same became final. 6. It appears that the Nayab Tehsildar (Ceiling) moved an application for restoration of the said order on the ground that it was an ex-parte order. This application was moved on 24.2.1989 after a lapse of almost 11 years. To this, the petitioner filed an objection and ultimately vide order dated 25.10.1991, the Prescribed Authority rejected the said application moved by the Nayab Tehsildar (Ceiling) clearly holding that the proceedings dated 25.5.1978 were not ex-parte and the dispute had been decided after giving full opportunity to the State to lead evidence. 7. Against the aforesaid order the State filed an appeal, which has been allowed giving rise to the present writ petition, the Appellate Authority has held that the order passed by the Prescribed Authority was based on surmises and conjectures and without putting the Nayab Tehsildar (Ceiling) to notice about the same. 8. Learned counsel for the petitioner contends that a clear finding has been recorded by the Prescribed Authority in the order dated 25.10.1991 that the order had been passed after giving full opportunity to the State to cross-examine the witnesses of the tenure holder. 8. Learned counsel for the petitioner contends that a clear finding has been recorded by the Prescribed Authority in the order dated 25.10.1991 that the order had been passed after giving full opportunity to the State to cross-examine the witnesses of the tenure holder. Further finding has been recorded by the Prescribed Authority that one Fateh Bahadur, the Lekhpal of the area concerned, had also been produced and he was also cross-examined. It is further submitted that the finding of the learned Commissioner that the proceedings were ex-parte is absolutely unfounded and based upon an erroneous assumption of fact and, therefore, liable to be set aside. 9. Learned Standing Counsel, on the other hand, contends that the order dated 25.5.1978 was ex-parte and further even on merits the order dated 25.5.1978 did not conform to the provisions of law. He contends that the learned Commissioner rightly proceeded to hear the matter on merits and lawfully revived the orders of the Prescribed Authority dated 29.6.1976. 10. Having heard learned counsel for the parties, the fact remains that the ceiling proceedings initiated against the petitioner’s father was taken up to the stage of the Appellate Authority whereupon the order of the Prescribed Authority was set aside and the matter was remanded back on 3.11.1976 calling upon the Prescribed Authority to decide the matter afresh. The Prescribed Authority vide order dated 25.5.1978 decided the matter holding that an area of 1.24 acres was surplus in the hands of the tenure holder in the irrigated sense. The said order was sought to be set aside and proceedings restored after 11 years on the allegation that it was ex-parte to the State. The Prescribed Authority in the order dated 25.10.1991 while rejecting the restoration moved by the State clearly found that the proceedings were not ex-parte and that the entire proceedings had been concluded after giving full opportunity to the State to cross-examine the witnesses. The learned Commissioner has attempted to reverse the said finding on the ground that the Nayab Tehsildar (Ceiling) had not been put to notice for the same and, therefore, it appears that prejudice has been caused. 11. The learned Commissioner has attempted to reverse the said finding on the ground that the Nayab Tehsildar (Ceiling) had not been put to notice for the same and, therefore, it appears that prejudice has been caused. 11. In my opinion, the aforesaid reversal by the learned Commissioner is perverse, inasmuch as, the said reversal has come without upsetting the finding of the Prescribed Authority, which was to the effect that the matter had been heard on merits and the State was allowed to lead evidence and cross-examine the witnesses of the tenure holders. This finding having not been reversed, it was therefore not open to the Commissioner to have reopened the entire issues which had on the same set of evidence been finalised earlier. The conclusion drawn by the learned Commissioner is not only erroneous but is also against the weight of evidence on record. This is also evident from a perusal of the counter affidavit, which has been filed on behalf of the State. 12. Further the ceiling proceedings are not a pandoras box to be opened on the whims of an official at any stage. The proceedings had become final in the year 1978. The Nayab Tehsildar (Ceiling) had no legally available foundation to move a restoration application after 11 years in a proceeding that had become final on the same set of evidence and same issues without there being any new discovery. Reference may be had to the decision in the case of Mahmood Rais and others v. State of U.P. and others, 2009 (5) ADJ 529 . The relevant paragraphs 12, 16 and 17 of the said decision are being quoted below : “12. In view of the aforesaid circumstances, it is clear that neither the family settlement was overturned by this Court nor was the theory of any fraud or misrepresentation on the part of the petitioners believed by this Court. In such a situation, there was no occasion for the Prescribed Authority to have re-opened the issue which had already became final after contest and after having led evidence in this regard. In such a situation, there was no occasion for the Prescribed Authority to have re-opened the issue which had already became final after contest and after having led evidence in this regard. The appellate order dated 27.9.77 has attained finality almost in all respects and no room was left for the Prescribed Authority to travel beyond it keeping in view the provisions of Section 38-B of the Act which has been explained by the Court in the case of D.N. Singh v. State of U.P., AIR 1999 SC 2264 and in the case of Ram Bhau Singh v. Addl. Commissioner, 2007 (5) ADJ 593 . 16. The authorities therefore have to keep in mind that they are no magicians to draw out some evidence from a magical hat nor they have unlimited powers to re-agitate issues already settled upon evidence having been taken. The proceedings have not to be placed at par with a Pandoras Box as they are very near to judicial adjudication. They do not have to repeat the same performance for a better result. This would be against law and against public policy. It is only where some new acquisitions have been made or some new fact which may come into existence later on, that the provisions of Section 38-B rescue the State against res-judicata. This is only to ensure any escape from assessment by the authorities that was otherwise capable of being considered. 17. There is yet another aspect which has to be dealt with in such matters. The provisions of the Act do not altogether throw away over board the doctrine relating to finality. The question of issue estoppel and its distinction from res-judicata and constructive res-judicata has been dealt with in paras 39 and 40 of the judgment in the case of Dadu Dayal Maha Sabha reported in 2008 (11) SCC 753 . It is true that these general doctrines may not over ride a statutory provision yet the principles enshrined therein cannot be construed to have been whittled down in law. The provisions contained under the Ceiling Act cannot be construed to the extent of diluting the impact of the said principles when the matter has been decided between the same parties on the same set of evidence without there being anything new. The provisions contained under the Ceiling Act cannot be construed to the extent of diluting the impact of the said principles when the matter has been decided between the same parties on the same set of evidence without there being anything new. It is akin to the principles employed while dealing with the doctrine of precedents which also finds mentioned in Ambika Prasad v. State of U.P., AIR 1980 SC 1762 and in the Full Bench decision of our Court in the decision of Rana Pratap Singh v. State, 1995 ACJ 200. The doctrine of finality has also been discussed as being a doctrine which is to promote public interest. Reference may be had to the case of Krit Kumar Chaman v. Union of India, 1981 (2) SCC 436 and in the matter of taxation in the case of Devi Lal Modi v. Sales Tax Officer, AIR 1965 SC 1150 . In the instant case after the order of the appellate authority was pronounced on 27.9.77 regarding a finding on the issue of family settlement, and the State did not choose to file any writ petition questioning the said order, then in the opinion of this Court the doctrine of finality would be attracted in such a situation.” 13. The reason given that the proceedings were ex-parte are not founded on any material and the prescribed authority was therefore right in concluding that the proceedings that had been finalized after giving full opportunity to the State. The proceedings could have been reopened on the principles as referred to under Section 38-B of the Act. However, there was no new material before the authority to invoke the said provision and, therefore, they could not have proceeded under the garb of the restoration application after 11 years that there was an incorrect calculation made by the Prescribed Authority in the order dated 25.5.1978. The learned Commissioner erred in entering into the merits of the claim when the State had failed the file any appeal within time against the order dated 25.5.1978. 14. Apart from this, it is surprising that if the order dated 25.5.1978 of the Prescribed Authority in any way prejudiced the State then the State ought to have filed a regular appeal against the order, which was admittedly not done. 14. Apart from this, it is surprising that if the order dated 25.5.1978 of the Prescribed Authority in any way prejudiced the State then the State ought to have filed a regular appeal against the order, which was admittedly not done. The appeal appears to have not been filed within time and it is for this reason that a restoration application appears to have been moved after 11 years so as to avoid limitation, for which there is no plausible reason available on record. The action of the Naib Tehsildar after 11 years of the order dated 25.8.1978 was actuated by malice in law and the prescribed authority was fully justified in rejecting the same on valid and cogent reasons. 15. The learned Commissioner appears to have overlooked the aforesaid aspects of the matter and has thus arrived at a conclusion which is erroneous in law as well as on facts. The impugned order dated 3.7.1992 is not legally sustainable and is hereby quashed. 16. With the aforesaid observations, the writ petition is allowed. ————