Udai Narain vs State of U.P. and Others

Sudhir Agarwal, J.—Heard Sri Rahul Srivastav, Advocate holding brief of Sri Chandan Sharma, learned counsel appearing for the petitioner and perused the record. The writ petition is directed against order dated 23.1.1992 passed by Prescribed Authority/Collector, Fatehpur declaring 5.66 acres (irrigated) land of petitioner surplus in proceedings initiated under U.P. Imposition of Ceiling on Land Holdings Act, 1960 (hereinafter referred to as "Act") and the appellate order dated 29.6.1992 (Annexure 8 to the writ petition) passed by Additional Commissioner (Administration), Allahabad Division Allahabad rejecting his appeal.

The petitioner is a tenure holder of Gate No. 81, 154-Ka and Kha, 491, 847 and 408 situated in Village Makarandpur Nisfi, Pargana Koda, Tahsil Bindaki, District Fatehpur. The Prescribed Authority issued a notice sometimes in 1973 u/s 10(2) of Act as amended by U.P. Act No. 18 of 1973 proposing to declare 39.72 acres of land surplus. The petitioner filed his objection pointing out that in an earlier proceedings, certain land was already declared surplus vide Prescribed Authority''s order dated 30.12.1968 and the land already subject-matter of ceiling proceedings has wrongly been added. After considering petitioner''s reply, proceedings were dropped by Prescribed Authority vide order dated 24.3.1975.

Another notice was issued u/s 10(2) of the Act to the petitioner on 30.11.1988 which was also objected by petitioner by his reply dated 23.2.1989. He also filed an application objecting second proceedings, which was rejected by Prescribed Authority by order dated 30.10.1990 and petitioner''s further objection that proceeding are barred by res judicata was rejected vide order dated 19.3.1991. Both these orders were challenged in writ petition No. Nil of 1991 which was decided of 29.11.1991 (judgment filed as Annexure 5 to the writ petition) wherein this Court declined to interfere on the question of res judicata observing that such an issue can be raised in appeal but it permitted the petitioner to adduce evidence on the question of maintainability of subsequent notice.

Prescribed Authority passed final order dated 23.1.1992. The plea of res judicata was rejected by taking recourse to Section 38B of the Act and objection against second notice was rejected by observing that petitioner failed to show any invalidity in subsequent proceedings. Appeal of the petitioner has also been rejected by confirming the order of Prescribed Authority.

The authorities below have referred to Section 38B read with Section 29 of the Act to justify fresh notice dated 30.11.1988. A copy of notice has been placed on record as Annexure 3 to the writ petition, which is a printed copy and mention that it is being issued u/s 10(2) of Act. It says that since petitioner has not submitted statement u/s 9 of the Act and therefore statement prepared by respondents authorities is being sent inviting objections, if any, from the petitioner. It does not say as to why fresh notice was issued to the petitioner.

As already pointed out, ceiling proceedings were initiated against petitioner in the year 1973 after enforcement of U.P. Act No. 18 of 1973, Section 38B was inserted by U.P. Act No. 20 of 1976 w.e.f. 10.10.1975. It provides that no finding or decision given before commencement of this section shall bar trial of such proceedings or issue under the said Act.

A question arose, whether it gave a blanket power to the ceiling authorities to issue a fresh notice ignoring proceedings earlier initiated by Ceiling Authorities and having already concluded.

A Division Bench of this Court in Kedar Singh Vs. Additional District Judge and Others, , said that it would apply only where retrial is necessary or is necessitated by reason of the amendments introduced by the aforesaid Amending Act becoming applicable.

There was some contrary opinion in another matter and this issue was considered by a Full Bench in Prakash Singh v. Prescribed Authority, Bilaspur, Rampur and another, 1986 RD 38. The Full Bench confirmed the view taken by Division Bench in Satya Pal Singh Vs. The State of Uttar Pradesh and Others , wherein it was observed that fresh notice u/s 10(2) will be issued provided it is required in view of the amendment to the Principal Act brought about by the Amendment Acts of 1974 or 1976.

The application of Section 38B thereafter was considered by Apex Court in Devendra Nath Singh (Dead) through Lrs. and Others Vs. Civil Judge, Basti and Others, , and with reference to Section 38B, it says:

The power u/s 38B 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 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.

This Court has also considered above decisions in Writ Petition No. 12340 of 1997 (Prabhat Kumar Singh v. State of U.P. and others) decided on 17.5.2012 and having followed the above view, has remanded the matter to the Prescribed Authority to reconsider the matter afresh.

In the present case, notice does not indicate that fresh determination was necessary in view of amendments made in the Principal Act. In fact notice itself is totally silent on this aspect. In fact it does not refer to any aspect or reason at all. It is not a case of re-opening of earlier proceedings on account of any mistake etc. as that could have been possible only within two years. It is also not the case of respondents that reopening has been resorted to by virtue of Section 13A of the Act or Section 9 of the U.P. Amendment Act of 1974 or Section 31(3) of Amendment Act 20 of 1976.

In my view, proceedings thus initiated by respondents-Ceiling Authorities by issuing fresh notice u/s 10(2) of the Act and that too without mentioning any reason is illegal. They have committed patent error of law and the impugned notice is wholly without jurisdiction.

The writ petition is therefore allowed. The impugned orders dated 23.1.1992 and 29.6.1992 (Annexures 7 and 8 to the writ petition) are hereby set aside. No costs.