Satya Narain Giri vs State of U.P. and Others

Ram Surat Ram (Maurya), J.—Heard Sri A.B. Singh, Counsel for the petitioner and Sri Sanjay Goswami, Standing Counsel, for the respondents. The writ petition has been filed against the orders of Prescribed Authority dated 31.3.1994, declaring an area of 29.81 acre land, in terms of irrigated land as surplus with the petitioner and Commissioner Gorakhpur Division, Gorakhpur dated 20.4.1995, dismissing the appeal of the petitioner, in the proceedings u/s 10(2) of U.P. Imposition of Ceiling on Land Holdings Act, 1960 (hereinafter referred to as the Act).

Prescribed Authority issued a notice u/s 10(2) of the Act to the petitioner and by order dated 20.4.1974 declared an area of 10.20 acre land, in terms of irrigated land as surplus with the petitioner. The petitioner filed an appeal from the aforesaid order. During pendency of the appeal, a fresh notice u/s 10(2) of the Act dated 30.12.1975 was issued, in pursuance of the Act being amended by U.P. Act No. 18 of 1973, showing an area of 28.34 acre land, in terms of irrigated land, as surplus with the petitioner. The notice was contested by the petitioner, mainly on the ground that Rudra Bhan Giri, his son was born on 25.3.1949 as such he had become coparcener with him in the ancestral, sir and khudkast land. There was divorce between him and his wife from a long time due to which the properties recorded in the name of his wife Smt. Kamla Devi could not be included in his holdings. Rudra Bhan Giri, son of the petitioner also filed his objection and contested the matter. The Prescribed Authority by judgment dated 29.6.1976 declared 18.87 acre land, in terms of irrigated land as surplus with the petitioner.

The petitioner filed an appeal (registered as Ceiling Appeal No. 404 of 1976) from the aforesaid order. The appeal was heard by IVth Additional District Judge, Deoria, who by order dated 10.8.1977 partly allowed the appeal of the petitioner and held 10.78 acre land, in terms of irrigated land as surplus with the petitioner. The petitioner filed a writ petition (registered as Writ Petition No. 5057 of 1977, which was dismissed on 13.4.1978. The petitioner moved a Review Application before the Appellate Court, which was rejected by order dated 13.1.1979. The petitioner then filed another writ petition (registered as Writ Petition No. 1914 of 1979, which was dismissed by this Court by order dated 14.9.1981.

Thereafter Prescribed Authority issued another notice dated 22.1.1982 u/s 10(2) of the Act to the petitioner, showing 40.11 acre land, in terms of irrigated land as surplus with the petitioner. The petitioner filed his objection dated 25.6.1982 to the aforesaid notice, in which, the petitioner took the plea which were previously taken and also that land of village Sirvania was already been in possession of other person since long before the date of vesting and did not belong to him. In consolidation, his area has been reduced, due to contribution of land for public purposes as well as allotment of land of high valuation, which has not been taken in account. Second notice cannot be issued and the earlier judgments would operate as res judicata. Prescribed Authority by his order dated 31.3.1994 held that Rudra Bhan Giri son of the petitioner has 1/2 share in the ancestral, sir and khudkast land, total area of which was 20.61 acre and share of Rudra Bhan Giri was 10.30 acre. Decree in the suit u/s 176/229B of U.P. Act No. 1 of 1951 was passed on 1.12.1971 as such it was liable to be ignored u/s 5(6) Explanation 1(a) of the Act. There is no evidence to show that the land of village Sirvania did not belong to the petitioner. By a compromise decree dated 1.12.1971, the land recorded in the name of Smt. Kamla Devi wife of the petitioner, which is a sham transaction and liable to be ignored. The petitioner was not entitled to benefits of the reduction of area during consolidation. The land which have been shown as irrigated land in the notice have correctly been shown. On these findings an area of 29.81 acre land, in terms of irrigated land has been declared as surplus with the petitioner by the order dated 31.3.1994. The petitioner filed an appeal (registered as Ceiling Appeal No. 127-D of 1994) from the aforesaid order. The appeal was heard by Commissioner Gorakhpur Division, Gorakhpur, who by his order dated 20.4.1995 dismissed the appeal. Hence this writ petition has been filed.

The writ petition was earlier allowed by this Court by judgment dated 19.12.2003 holding that second notice dated 22.1.1982, reopening the final orders passed in the previous proceedings was illegal and without jurisdiction and the order of Prescribed Authority dated 31.3.1994 and appellate authority dated 20.4.1995 were quashed. State of U.P. filed SLP (Civil) No. 3509 of 2005, converted as Civil Appeal No. 4725 of 2008 from the aforesaid order. Before the Supreme Court, State of U.P. took the plea that after the orders in previous proceeding, an inquiry was conducted, in which it was found that certain land of the petitioner escaped notice in the previous proceeding, as such, second notice was issued to the petitioner. However, neither inquiry report nor the previous notice dated 30.12.1975 nor the second notice dated 22.1.1982 were placed by either of the parties before Supreme Court. As such, Supreme Court, allowed the appeal by judgment dated 30.7.2008 and set aside the order of this Court dated 19.12.2003 and remanded the case to this Court for afresh decision on merit, in order to do complete justice. After remand, a Supplementary Counter Affidavit of Munish Singh was filed on 29.9.2012, on behalf of State of U.P. In paragraph-7 of this affidavit it has been stated that inquiry report was not on the record. However, copy of the notice dated 30.12.1975 has been attached to this Supplementary Counter Affidavit of Munish Singh. Although, it has been stated that notice dated 22.1.1982 was also attached but the same was not attached. In the entire Supplementary Counter Affidavit of Munish Singh, it has not been disclosed that as to which land of the petitioner was escaped noticed in the previous proceedings. A copy of the notice dated 22.1.1982 has been attached along with writ petition as Annexure-3, by the petitioner.

The Counsel for the petitioner submitted that absolutely false statement was made before the Supreme Court that an inquiry has been conducted in which certain land of the petitioner was found to be escaped from notice in the previous proceeding. In the Supplementary Counter Affidavit, Munish Singh has admitted that no such inquiry report was on the record. He could not state as to which of the land of the petitioner was escaped from notice in the earlier proceeding. A comparison of two notices shows that all the plots mentioned in the notice dated 22.1.1982 were mentioned in the notice dated 30.12.1975. Second notice is barred on the principles of res judicata. Standing Counsel for State of U.P. argued that plot Nos. 518 and 547 of village Suryapura were shown as un-irrigated land in the earlier notice dated 30.12.1975 which were shown as irrigated land in the notice dated 22.1.1982. A part from this there is no difference in the two notices.

I have considered the arguments of the Counsel for the parties and examined the record. In the notice dated 30.12.1975, in village Suryapura total area of bhumidhari irrigated land was shown as 5.36 acre, un-irrigated land as 7.245 acre and grove land as 20.60 acre and sirdari irrigated land was shown as 14.22 acre. In village Bahorpur total area of irrigated land was shown as 0.13 acre, un-irrigated land as 1.47 acre. In village Shahpur total area of grove land was shown as 3.13 acre. In village Sirvania total area of un-irrigated land was shown as 8.71 acre. In village Mathia total area of abadi land was shown as 0.03 acre. In village Sidhuwa total area of un-irrigated land was shown as 2.30 acre. Total area of the land with the petitioner and his family members was shown as 27.92 acre in terms of irrigated land and total area of the land was shown as 71.765 acre. In the notice dated 22.1.1982, total area of the irrigated land of village Suryapura was shown as 5.36 acre, un-irrigated as 6.76 and grove land as 20.60 acre. Total area of un-irrigated land of village Bahorpur was 1.60 acre, total area of un-irrigated land of village Sirvania was shown as 1.11 acre, total area of un-irrigated land of village Sidhuwa was shown as 2.30 acre, total area of irrigated land of village Shahpur was shown as 1.32 acre total area of un-irrigated land of this village was shown as 28.34 acre. Total area of the land with the petitioner and his family was shown as 27.92 acre irrigated land and 40.11 acre un-irrigated land and total area of the land was 68.03 acre. Thus, in the previous notice, area of irrigated land was the same, while in the second notice, total area of un-irrigated land is less than the previous notice. Stand taken before Supreme Court by State of U.P. that in previous proceeding, some land was escaped noticed was false. Neither any inquiry was conducted nor any new land was included in the second notice. There was absolutely no justification for issue of the second notice.

Section 13(2) of the Act, provides that order of Appellate Court will be final and conclusive and be not questioned in any Court of law. u/s 13A of the Act any mistake apparent on the face of record can be rectify. Admittedly second proceedings has been initiated u/s 10(2) and not u/s 13A of the Act, ignoring the previous proceedings. Supreme Court in Devendra Nath Singh (Dead) through Lrs. and Others Vs. Civil Judge, Basti and Others, held that u/s 13A, the prescribed authority has the power to reopen the matter within two years from the date of the notification under sub-section (4) of section 14 to rectify any apparent mistake which was there on the face of the record. That power will certainly not include the power to re-examine the questions and findings which have already reached the finality in the very case under the Act. Similar view has been taken by this Court in State of U.P. Vs. Dev Karan and Others, and Raja Ram v. Additional Commissioner and others 1994 (AC) 910. In view of the aforesaid discussion, the writ petition succeeds and is allowed. The notice dated 22.1.1982 and orders of Prescribed Authority dated 31.3.1994, declaring an area of 29.81 acre land, in terms of irrigated land as surplus with the petitioner and Commissioner Gorakhpur Division, Gorakhpur dated 20.4.1995, dismissing the appeal of the petitioner are quashed. The petitioner has been harassed in illegal and arbitrary manner in second round of litigation upto Supreme Court. The authorities made absolutely false statement before Apex Court that some inquiry has been conducted, in which, some land of the petitioner escaped notice in previous proceeding. In such situation a cost of Rs. 25,000/- is awarded to the petitioner. The Collector, Deoria will pay the cost to any of the substituted petitioners through bank draft within one month. It shall be open for the State Government to realize the amount of the cost from the officer concerned.