Kailash Babu vs Commissioner, Kanpur Division and another

Sudhir Agarwal, J.—Heard Shri B.N. Rai, learned Counsel for the petitioner and learned Standing Counsel. It appears that the petitioner''s father was issued notice u/s 10 (2) of the U.P. Imposition of Ceiling on Land Holdings Act, 1960 (hereinafter referred to as the Act) whereagainst he filed his objection and thereafter prescribed authority passed the order on 30.11.1974 to the following effect:--

The said order attained finality having not been challenged thereafter. Devi Dayal died on 14.5.1985 and based on his unregistered Will his property was recorded in the name of the petitioner and Smt. Bhoori Devi - widow of Devi Dayal and also Nirmal Kumar, Vimal Kumar and Kamal Kumar all sons of late Devi Dayal. The said mutation took place on 11.3.1994, whereafter notice was issued to the petitioner on 19.6.1996, whereagainst he filed an objection. Order was passed by prescribed authority u/s 12 of the Act on 13.11.1996. In the aforesaid while considering issue No. 1 prescribed authority took the view that after the death of Devi Dayal property was transferred and recorded in the name of the petitioner, hence fresh proceeding under the Ceiling Act could have been initiated. The finding already arrived at in the order dated 30.11.1974 was reopened by virtue of section 38-B. Against the aforesaid order appeal was preferred before the appellate authority, which was rejected on 11.3.1997.

A perusal of section 38-B of the Act shows that the same would not apply in the order, which has been passed under the provisions of the Ceiling Act itself. It reads as under:--

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 retiral of such proceeding or issue under the Act, in accordance with the provisions of this Act as amended from time to time.

A perusal of section 38- B of the Act shows that it applies in respect to the findings or decision given by any Court, Tribunal or authority in respect of any matter governed by this Act, but not in the proceeding of this Act.

This question came to be considered before the Apex Court in Devendra Nath Singh (Dead) through Lrs. and Others Vs. Civil Judge, Basti and Others, and the Court after considering section 38-B in paragraph 3 held as under:--

3...............The power u/s 38-B merely indicates that if any finding or 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 resjudicata in a proceeding under the Act. That would not cover the case where findings have already reached the finality in the very case under the Act. In this view of the matter we have no hesitation to come to the conclusion that the Prescribed Authority had no jurisdiction to reopen the question of majority of the two sons in purported exercise of the power u/s 13-A. If the Authority had no jurisdiction, question of waiver of jurisdiction does not arise, as contended by learned Counsel for the respondent.

The Apex Court also considered the Full Bench judgment in Ram Charan v. State of U.P.,1978 (4) ALR 819 (FB) and explained that therein the findings were arrived at under the provisions of Consolidation Act and, therefore, the Full Bench held that in view of section 38-B of Ceiling Act, the said finding will have no binding effect in the ceiling proceedings.

In Lady Parassan Kaur Charitable Educational Trust Society, Gorakhpur v. State of U.P. and others,2001 (92) RD 572 (HC) a learned Single Judge of this Court considered the question as to whether second notice could have been issued u/s 10 (2) of the Act once proceedings after issuance of notice u/s 10 (2) of the Act have attained finality. Referring to sections 3, 6, 10, 13-A, 29, 30, 31 and 38-B of the Act the Court said that the aforesaid statutory provision reveals that if any reply of a notice issued u/s 9 of the Act, no return is filed, the Prescribed Authority may issue notice to the tenure-holder calling upon him to show as to why the land (specified by him) be not declared surplus. This order of the Prescribed Authority would be appealable u/s 13 of the Act. The orders of the Prescribed Authority and Appellate Authority are liable to be corrected in the proceedings u/s 13-A of the Act. The power could, however, be exercised only if the orders suffer from an error apparent on the face of record or for correction of a bona fide clerical error. Sections 29, 30 and 31 provide subsequent declaration and determination of surplus land.

Here, it is not the case of the respondents that proceedings were reconsidered in exercise of power under sections 13-A, 29, 30 or 31 of the Act. The authorities below have specifically relied upon section 38-B of the Act. In view of what has been stated by the Apex Court in Devendra Kumar Singh (supra) this Court hold that second notice u/s 10 (2) of the Act is bad in law. In my view, the authorities below, in the present case also, have completely erred in law as proceedings under Ceiling Act were already finalized pursuant to the notice issued earlier in 1974 and, therefore, the impugned orders cannot sustain. In the result, the writ petition succeeds and is hereby allowed. Impugned orders dated 13.11.1996 passed by Prescribed Authority and order dated 11.3.1997 passed by Appellate Authority are hereby quashed.