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Hakim Khan Vs. State of U.P. and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ Petn. No. 9702 of 1980
Judge
Reported inAIR1981All426
ActsUttar Pradesh Imposition of Ceiling on Land Holdings Act, 1961 - Sections 10(2) and 38B; Uttar Pradesh Imposition of Ceiling on Land Holdings (Amendment) Act, 1976 - Sections 31(3); Code of Civil Procedure (CPC) , 1908 - Sections 11
AppellantHakim Khan
RespondentState of U.P. and ors.
Appellant AdvocateK.B. Garg, Adv.
Respondent AdvocateStanding Counsel
DispositionPetition dismissed
Excerpt:
.....proceeding - depends upon form and manner in which orders are passed by authority in subsequent ceiling proceedings. - - assistant director (consolidation), (1978 all lj 186). 5. i have considered the aforesaid submissions of the learned counsel for the petitioner, but in my view, i do not feel that the instant is a fit case for interference in the writ jurisdiction of this court, it is well known that article 226 of the constitution of india confers a discretionary power on the high courts and while exercising such discretion, all the facts and circumstances have to be kept in view including the equities of the case. 13. however, the prescribed authorities sometimes took precaution and clearly laid down in the subsequent ceiling proceedings that the earlier ceiling proceedings..........the legislature in amending the parent act by the u. p. act no. 20 of 1976 was to get some further land declared as surplus. a reference to the various amendments effected in the parent act by the said amending act will make the said position clear. however, it is not necessary to go into details. it cannot be suggested that the aim of the legislature was to give back to the tenure holders any of their lands which had already been declared as surplus before the amendments of the parent act. despite this legislative intention, it did happen that the ceiling authorities in the subsequent ceiling proceedings purported to redetermine the ceiling area in a completely de novo manner and sometimes the result was that, contrary to the legislative intention, thesurplus land declared in the.....
Judgment:
ORDER

M.P. Mehrotra, J.

1. This petition arises out of the proceedings under the U. P. Imposition of Ceiling on Land Holdings Act.

2. The facts, in brief, are these. The petitioner Hakim Khan was issued the notice under Section 10 (2) of the Act and he filed objections. They were decided by the Prescribed Authority and thereafter, both the tenure-holder and the State went up in cross-appeals and both these appeals were decided by the appellate court on 14-9-1975 and 1.20 acres was declared as surplus land. The said order became final. Subsequently, after the amendment of the Ceiling Act, a fresh notice under Section 10 (2) of the Act was issued to the petitioner whereby 6.34 acres of irrigated land was sought to be declared as surplus; a true copy of the said notice has not been annexed to the writ petition. However, it has been referred to in the orders passed by the Ceiling Authorities. Objections were filed by the petitioner and one of his objections was that in the earlier ceiling proceedings some land had already been declared as surplus land and there was no occasion for issuing a fresh notice to him under Section 10 (2) of the Act. It was further contended that the earlier order should operate as res judicata in the subsequent proceedings. Certain other pleas were taken with which we are not concerned. The Prescribed Authority framed issues and the first issue was 'whether the order passed in the earlier ceiling proceedings would operate as res judicata in the subsequent ceiling proceedings'. The Prescribed Authority by his order dated 31-7-1978 decided the objections of the petitioner and held that 5,72 acres ofirrigated land was liable to be declared as surplus in the hands of the petitioner and since 1.20 acres had already been declared as surplus land over which possession had also been taken, therefore, only 4.52 acres of the irrigated land was further liable to be declared as surplus. In the said order, it was held that the earlier proceedings would not operate as res judicata due to provisions contained in Section 38-B of the Act. A true copy of the said order passed by the Prescribed Authority on 31-7-1978 is Annexure 'B' to the petition. It seems that thereafter, the petitioner filed an appeal and the same was allowed by the appellate court but the copy of the remand order has not been annexed to the writ petition. Thereafter, the Prescribed Authority passed his order dated 28-1-1980, a true copy whereof is Annexure 'C' to the petition. Against the said order dated 28-1-1980, an appeal was filed by the petitioner and the same was dismissed as not maintainable by the appellate court on 12-8-1980 and a true copy of the appellate court's judgment is Annexure 'D' to the petition. A certified copy of the said judgment is also on the record.

3. Feeling aggrieved, now the petitioner has come up in the instant writ petition and in support thereof, I have heard Sri K. B. Garg, learned counsel for the petitioner and in opposition, the learned Standing Counsel has made his submissions.

4. The learned counsel for the petitioner contended that after the Prescribed Authority and the lower appellate court held that there was no surplus land in the hands of the petitioner as a result of the adjudication in the subsequent ceiling proceedings, it was not open to them to hold that the adjudication in the earlier ceiling proceedings continued to subsist. It should be seen that the Prescribed Authority by its impugned order dated 28-1-1980 (Annexure 'C') discharged the subsequent notice issued under Section 10 (2) of the Act in the subsequent mailing proceedings. Despite the said order passed by the Prescribed Authority discharging the notice under Section 10 (2) of the Act, the petitioner filed an appeal on the ground that the Prescribed Authority should have also quashed the earlier order dated 14-9-1975 whereby the appellate court had declared, 1.20acres as surplus land. In the appeal it was prayed that the said earlier order dated 14-9-75 should be cancelled. The appellate court held that the appeal was not maintainable and that in view of my decision in Hukum Singh v. State (1980 All LJ 603), the correct legal position was that the declaration of surplus land in the earlier ceiling proceedings remained effective and in the subsequent ceiling proceedings, the result of the discharge of the notice under Section 10 (2) of the Act was only this that no further land was liable to be declared as surplus. Sri Garg contended that in view of the law laid down by the Division Bench in Balwant v. State of U. P., (1980 All WC 254) : (1980 All LJ 775), the declaration of surplus land in the earlier ceiling proceedings must be deemed to stand annulled and, therefore, the authorities below were not right in holding that the declaration of 1.20 acres of land as surplus in the earlier ceiling proceedings remained effective and valid despite the discharge of the notice under Section 10 (2) of the Act in the subsequent ceiling proceedings. The learned counsel further contended that since there was a conflict between the aforesaid Division Bench pronouncement and another earlier Division Bench pronouncement reported in 1980 All WC 487, Uma Shankar v. State, therefore, on the principle, that the latter decision should be held to be binding and not the earlier one, the decision in Balwant v. State of U. P. (supra) should be followed by this Court. For this proposition he placed reliance on (AIR 1977 All 1) (FB) U. P. State Road Transport Corporation v. State Transport Appellate Tribunal U. P. Lucknow. The learned counsel lastly contended that the remand order passed by the appellate court in the subsequent ceiling proceedings was binding and the same had to be given effect to by the Prescribed Authority. For this proposition, he placed reliance on the Division Bench pronouncement Pritam Singh v. Assistant Director (Consolidation), (1978 All LJ 186).

5. I have considered the aforesaid submissions of the learned counsel for the petitioner, but in my view, I do not feel that the instant is a fit case for interference in the writ jurisdiction of this Court, It is well known that Article 226 of the Constitution of India confers a discretionary power on the High Courts and while exercising such discretion, all the facts and circumstances have to be kept in view including the equities of the case. In my view, the learned counsel for the petitioner is not right in suggesting that there is a conflict between the aforesaid two Division Bench pronouncements, namely, the one made in Uma Shankar v. State, (1980 All WC 487) and that made in Balwant v. State, (1980 All WC 254) : (1980 All LJ 775). In the first case, two questions had been referred to the larger Bench. The said questions were as follows:--

'1. Whether the Full Bench decision in Ram Charan's case (1978 All WC 677) : (AIR 1979 AH 114) has by implication overruled the decision of the learned single Judges in Ram Lal v. State of U. P. 1978 All WC 713 : (1978 AH LJ 1197) and Ghana Ram v. State, 1977 All WC 415 : (AIR 1977 NOC 353) on the question of the true scope of Section 38-B of the U. P. Imposition of Ceiling on Land Holdings Act?

2. If the said Full Bench decision has not by implication overruled, the said single Judge pronouncement, then is the scope of Section 38-B, on its true interpretation, qualified in the manner as held by the learned Judges in the said single Judge decisions?'

6. The Division Bench answered the first question in the negative arid the second one in the affirmative. It was laid down by the Bench that the single Judge pronouncements of this Court reported in Ram Lal v. State (1978 All WC 713) : (1978 All LJ 1197) and Ghana Ram v. State (1977 All WC 415) : (AIR 1977 NOC 353) laid down the correct law on the question of the true scope of Section 38-B of the Ceiling Act. The Division Bench considered Section 31 (3) of the U. P. Imposition of Ceiling on Land Holdings (Amendment) Act (U. P. Act No. 20 of 1976) along with Section 38-B of the parent Act and held that it was not the intention of the Legislature that the entire ceiling proceedings taken by the Ceiling Authorities - prior to the amendment should stand as nullified. The legislative intention was that where it was necessary to redetermine the surplus land as a result of the amendments effected in the ceiling law, which came into force afterthe earlier ceiling proceedings, then it should be possible for the Ceiling Authorities to redetermine the surplus land in the light of the subsequent amendments in the Ceiling Law. The said purpose was sought to be achieved by enacting Section 31 (3) of the U. P. Amending Act No. 20 of 1976 and by incorporating Section 38-B in the parent Act, Taking into consideration the legislative aim, the Division Bench laid down that if there had been no such amendment in the ceiling law as affected the findings in the earlier proceedings, then the finding recorded in the earlier ceiling proceedings would continue to remain effective and would operate as res judicata in the subsequent ceiling proceedings also.

7. In the other Division Bench pronouncement reported in Balwant v. State of U. P. (1980 All LJ 775) (supra), the facts were these. In the earlier ceiling proceedings land measuring 9 Bighas 5 Biswas 6 Biswansis was declared as surplus by the Prescribed Authority. Thereafter, the matter went to the appellate court and the order of the Prescribed Authority was set aside and the case was remanded to the said authority for recalculating the surplus land in accordance with the directions given in the remand order passed by the appellate court on 20th September, 1975.

8. A fresh notice was in the meanwhile issued by the Prescribed Authority under Section 10 (2) of the Act read with the provisions of Section 31 (3) of the U. P, Amending Act No. 20 of 1976, The objections were filed to this notice and they were decided by the Prescribed Authority by his order dated 4-6-1976 whereby 17 Bighas 10 Biswas 13 Biswansis of land was declared as surplus. An appeal was filed against the order dated 4-6-1976 and the same was decided by the appellate court on 13-1-1977. The appellate court allowed the appeal and held that only 5 Biswas 6 Biswansis of land was liable to be declared as surplus and was so declared.

9. It seems that the Prescribed Authority on 5-6-1976 recalculated the surplus land in accordance with the aforementioned remand order dated 20th September, 1975 passed by the appellate court in the earlier ceiling proceedings. It should be seen that the Prescribed Authority had already passed his order a day earlier i.e. on 4-6-76 in the subsequent ceiling proceedings. The State Government in these circumstances wanted to enforce the determination of surplus land made in the earlier ceiling proceedings by the Prescribed Authority by his order dated 5-6-1976 which was passed in compliance with the said remand order of the appellate court dated 20th September, 1975. The tenure-holder filed his objections to this attempt on the part of the State Government and when the said objections were rejected by the Prescribed Authority, the tenure-holder filed a writ petition in this Court and the same was decided by the Division Bench in the said reported case. The Bench held that in the facts of the said case the earlier ceiling proceedings stood annulled in view of the subsequent ceiling proceedings, and that the only enforceable order was the final order passed in the subsequent ceiling proceedings by the appellate court on 13-1-1977.

10. It should be seen that in Uma Shanker v. State (1980 All WC 487) (supra) the Division Bench was not concerned with any controversy as to which order would be enforceable whether the one passed in the earlier ceiling proceedings or that passed in the subsequent ceiling proceedings. The Bench was concerned only with the controversy as to whether the findings recorded in the earlier ceiling proceedings would be res judicata in the subsequent ceiling proceedings. In the other Division Bench pronouncement, however, the said controversy came up for consideration and it was held that the final order passed in the subsequent ceiling proceedings would be the only effective order and the order passed in the earlier ceiling proceedings stood annulled in the facts of the said case. It will thus be seen that the controversies involved in the two Division Bench pronouncements differ from each other and, therefore, there is no question of making a reference to a larger Bench on the counsel's contention that the said two Division Bench pronouncements have laid down conflicting law.

11. It should be seen that there is no provision in the parent Ceiling Act or in the U. P. Amending Act No. 20 of1976 making the earlier ceiling proceedings to stand annulled or nullified merely on the ground that a provision has been made for the initiation of the fresh ceiling proceedings after the commencement of the Amending Acts. As I have stated above, in this connection the two relevant provisions are those contained in Section 38-B of the parent Act and Section 31 (3) of the U. P. Amending Act No. 20 of 1976. Both the provisions are 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'.

'31 (3). 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, redetermine 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.'

12. It should be seen that the aim of the legislature in amending the parent Act by the U. P. Act No. 20 of 1976 was to get some further land declared as surplus. A reference to the various amendments effected in the parent Act by the said amending Act will make the said position clear. However, it is not necessary to go into details. It cannot be suggested that the aim of the legislature was to give back to the tenure holders any of their lands which had already been declared as surplus before the amendments of the parent Act. Despite this legislative intention, it did happen that the ceiling authorities in the subsequent ceiling proceedings purported to redetermine the ceiling area in a completely de novo manner and sometimes the result was that, contrary to the legislative intention, thesurplus land declared in the subsequent ceiling proceedings was less than the area declared as surplus in the earlier ceiling proceedings. This kind of situation arose because the correct interpretation of Section 38-B of the parent Act read with Section 31 (3) of the U. P. Amending Act No. 20 of 1976, was not available to the ceiling authorities till such time as the aforesaid Division Bench pronouncement in Uma Shanker's case (1980 All WC 487) (supra) clarified the law. Till the said pronouncement was made, the Prescribed Authority and the lower appellate Court were of the view that on account of Section 38-B read with Section 31 (3), they had a completely free hand in starting and completing the subsequent ceiling proceedings irrespective of what had been done earlier.

13. However, the Prescribed Authorities sometimes took precaution and clearly laid down in the subsequent ceiling proceedings that the earlier ceiling proceedings remained effective and in the subsequent ceiling proceedings only some additional land was being declared as surplus. This type of case arose in Hukum Singh v. State of U. P., (1980 All LJ 603). In the subsequent ceiling proceedings, it was made expressly clear that the earlier ceiling proceedings remained effective and only some additional land was sought to be declared as surplus in the subsequent! ceiling proceedings. The High Court in the said case approved of the said procedure adopted by the ceiling authority, but it must be admitted that in many cases, the Ceiling Authorities did not adopt the aforesaid course which was adopted in Hukum Singh's case. They purported to proceed in a completely fresh manner for determining the surplus land and the ceiling area. When such fresh determination resulted in the larger area being declared as surplus compared to the area which had been declared as surplus in the earlier ceiling proceedings, then no difficulty arose because the larger area subsequently declared as surplus included the smaller area declared as surplus in the ceiling proceedings. While passing the operative order, the Prescribed Authorities adopted different courses. Sometimes they would say that so much additional land was being declared as surplus in the subsequent proceedings in additionto the area which had been declared as surplus in the earlier ceiling proceedings, but sometimes in the operative order the total area, which was being declared as surplus, was mentioned without stating that the same consisted of the area which had been declared as surplus in the earlier ceiling proceedings plus the additional area which was being declared surplus in the subsequent ceiling proceedings. However, in practice, there was no difficulty because the subsequent order was treated as a self-contained order and it contained within its fold both the surplus land declared as such in the earlier ceiling proceedings and the additional surplus land declared as such in the subsequent ceiling proceedings. In such circumstances, the State did not claim that it was, entitled to take as surplus land from the tenure holder the land declared as surplus in the earlier ceiling proceedings plus the total land declared as surplus in the subsequent ceiling proceedings. The State claimed to take as surplus land, the land declared as surplus in the earlier ceiling proceedings, plus the additional land declared as surplus in the subsequent proceedings. In short, the aim was to take as surplus land the area which was declared as surplus in the earlier ceiling proceedings plus the additional area which was declared as surplus in the subsequent ceiling proceedings.

14. However, a complication arose in those cases where lesser area was declared as surplus in the subsequent ceiling proceedings compared to that which had been declared as surplus in the earlier ceiling proceedings. I have stated above that such a situation was not contemplated by the Amending Act but in view of the fact that the ceiling authorities were then of the view that in view of Section 38-B of the parent Act read with Section 31 (3) of the U. P. Act XX of 1976, they had a completely free hand, they proceeded in the subsequent ceiling proceedings in a de novo manner and sometimes declared lesser area as surplus compared to the area which had been declared as surplus in the earlier ceiling proceedings. Obviously, in such circumstances, when there was nothing in the orders passed by the Prescribed Authority or the appellate court in the subsequent proceedings to show that the earlier ceiling proceedings were to remain intact and effective, the orders passed in the subsequent ceiling proceedings, being self-contained were to be treated as the only effective orders and not the orders passed in the earlier ceiling proceedings which had declared a larger area as surplus land. When the Ceiling Authorities in the subsequent ceiling proceedings did the exercise in a completely free manner, unfettered by what had been done in the earlier ceiling proceedings and when they did not say in their orders that the earlier ceiling proceedings would continue to remain effective, then only the subsequent orders passed by the ceiling authorities could be treated as final and effective. Such was the case which was dealt with by the Division Bench in Balwant v. State (1980 All LJ 775) (supra). The earlier ceiling proceedings stood exhausted or nullified because of the manner in which the subsequent ceiling proceedings were decided. In the subsequent ceiling proceedings the determination of the surplus land and the ceiling area was done in a completely fresh manner and without reference to the earlier ceiling proceedings. A lesser area was declared as surplus in the subsequent ceiling proceedings compared to what had been declared as surplus in the earlier ceiling proceedings. The State's attempt was to seek to enforce the earlier orders which were detrimental to the tenure holder compared to the final order which was passed by the appellate Court in the subsequent ceiling proceedings where the entire calculation had been made in a completely fresh manner unfettered by the earlier ceiling proceedings. The Division Bench held that the State was not entitled to act in the said manner.

15. In my view, the controversy as to whether in a given case the earlier ceiling proceedings would stand as annulled or not, will depend upon the form and the manner in which the orders are passed by the authorities in the subsequent ceiling proceedings. If the authorities make it clear, either explicitly or by implication, that the subsequent determination of the surplus land is in addition to the determination in the earlier ceiling proceedings, then it cannot be held that the earlier ceiling proceedings would stand annulled. However,if in the orders passed in the subsequent ceiling proceedings, either by implication or explicitly there is nothing to suggest that the determination of the surplus land therein is in addition to the determination made in the earlier ceiling proceedings and the determination has been done completely de novo and in a full manner, unfettered by the earlier ceiling proceedings, then it must be held that the order passed in the earlier ceiling proceedings will stand annulled by implication. Such annulment, I wish to emphasise, is not on account of any statutory provision to be found in the parent Act or in the amending Act, but is brought about because of the manner and the form in which the order is passed in the sub-sequent ceiling proceedings.

16. Coming to the facts of the instant case, it should be seen that it differs in material respects from the facts in Balwant v. State (1980 All LJ 775) (supra) inasmuch as in the Division Bench pronouncement the appellate order passed in the subsequent ceiling proceedings had become final and was a full and complete order and still the State sought to enforce the order passed in the earlier ceiling proceedings. In the facts of the instant case, the authorities in the subsequent ceiling proceedings, while passing orders, made it clear, either explicitly or by implication, that the earlier ceiling proceedings continued to remain effective and binding, and the petitioner has come to this Court against the said orders passed in the subsequent ceiling proceedings. In Balwant's case (supra) the Authorities in the subsequent ceiling proceedings did not say either explicitly or by implication that the orders passed in the earlier ceiling proceedings were to continue to remain in force. This aspect makes all the difference between the said Division Bench pronouncement and the instant case.

17. Learned counsel for the petitioner, however, contended that the Prescribed Authority was bound by the remand order passed by the appellate Court earlier in the subsequent ceiling proceedings and if the same had been given effect to then the Prescribed Authority could not confine the operative part of his order dated 28-1-1980 merely to discharging the notice issuedunder Section 10 (2) of the Act in the subsequent ceiling proceedings, but he should have also held that some land which had been declared as surplus in the earlier ceiling proceedings, was not liable to be declared as surplus. It should be seen that the remand order has not been annexed to the writ petition and in its absence, it is difficult to say what were the explicit directions given in the same. However, even if the remand order was such as was suggested by the learned counsel for the petitioner in his arguments, still, I shall not consider it fit to interfere with the subsequent order passed by the prescribed Authority because of a variety of considerations. I have already stated above that it was not the legislative contemplation, while passing the Amending Acts, that as a result of the amendments effected in the ceiling law, some land which had already been declared as surplus in the earlier ceiling proceedings, would go back to the tenure-holders as a result of the subsequent ceiling proceedings. If this be the correct interpretation of the underlying legislative intention in enacting the Amending Acts, then it must be held that the impugned order of the Prescribed Authority is more in consonance with the said legislative intention, and even if it is not in accordance with the earlier remand order, this court will not use its extraordinary jurisdiction under Article 226 of the Constitution of India to enforce a wrong remand order.

18. This petition accordingly fails and is dismissed but there will be no order as to costs.


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