Allahabad High Court
Amar Bahadur And Amar Jeet Singh Both ... vs State Of Uttar Pradesh, Commissioner, ... on 6 November, 2006
Equivalent citations: 2007(3)AWC2832
JUDGMENT S.U. Khan, J.
1. Heard learned Counsel for the parties.
2. Ceiling proceedings under Section 10(2) of U.P. Imposition of Ceiling On Land Holdings Act (hereinafter referred to as Ceiling Act) were initiated against Hub Lal respondent No. 4. By order dated 6.9.1976, prescribed authority declared an area of 30 Bigha 13 Biswa agricultural land as surplus land. In appeal the said order was substantially maintained and the surplus area declared by the prescribed authority was reduced only by four biswa and four biswancies. Thereafter consequent order was passed by the prescribed authority on 3.11.1979. On 26.7.1980, petitioner No. 5 and 6 Gyan Bhadur Singh and Bal Krishna Singh filed objections under Section 11(2) of the Ceilings Act claiming that half of the land treated to be of respondent No. 4 by Ceiling authority belonged to them. Similar objections were filed on 8.8.1980 by petitioner No. 1 to 4. The Objections were rejected as being barred by time however appellate court reversed the said order and remanded the matter to prescribed authority to decide the objections on merit. Prescribed authority on 23.11.1981 rejected the objections against which appeal was filed by the petitioners being Revenue (Ceiling) Appeal No. 881 of 1981. VII A.D.J, Allahabad through judgment and order dated 8.11.1983 set-aside the order of prescribed authority and remanded the matter to the prescribed authority who again on 16.1.1985 rejected the objections of petitioners hence another appeal being Revenue Appeal No. 70/9/86 was filed. By that time jurisdiction to hear ceiling appeals had been conferred upon the Commissioner/Additional Commissioner instead of District Judge/Additional District Judge. Additional Commissioner, Allahabad division Allahabad allowed the appeal on 20.1.1987 and again matter was remand to the prescribed authority. Additional Commissioner held that the earlier order of remand dated 8.11.1983 had not been complied with by the prescribed authority. The said order of Additional Commissioner is annexure 2 to the writ petition. Thereafter again prescribed authority/Additional Collector Allahabad through order dated 15.9.1988 rejected the objections of the petitioners. Fourth time appeal was filed by the petitioners being Ceiling Appeal No. 2/88. This time Commissioner, Allahabad division Allahabad dismissed the appeal on 24.2.1990, hence this writ petition.
3. In the first remand order annexure 1 to the writ petition, it was mentioned that it had been held by the consolidation authorities on 22.1.1971 that petitioners were also co sharers of the land in dispute (which was treated to be exclusive land of Hub Lal by ceiling authorities). The argument of State was that even though the order of consolidation authority (SOC) was prior to 24.1.1971, however, it was actually mutated in the revenue records after 24.1.1971 hence it ought to be ignored. In para 11 of the said judgment annexure 1 to the writ petition it was observed as follows.
In view of my above discussion and observation, I am of the view that plots specifically recorded in the names of appellants by the order of the consolidation authorities are to be excluded from the holding of Hub Lal and determination of Ceiling area and surplus land has to be done according to the entries in favour of appellants and that of Hub Lal as ordered by the consolidation authorities. With this purpose, I have no option but to remand the case to the prescribed authority.
4. In the second remand order (annexure 2 to the writ petition), it was observed that extract of Khatauni for the year 1376-78 fasli wherein the order of S.O.C was incorporated was filed before the appellate court and it appeared that the said extract of Khatauni was not forwarded to the prescribed authority. It was further observed that relevant Khataunis has been filed before the court and the same should be sent to the prescribed authority.
5. It appears that the order of S.O.C was not filed.
6. By virtue of explanation I to Section 5(6) of the Ceiling Act, it is provided that a declaration of a person as a co tenure holder made after 24.1.1971 in a suit or proceedings shall be deemed to be transfer and shall be ignored. However even independently of Section 5(6) and its explanation if an order passed prior to 24.1.1971 is on the basis of compromise then it may be ignored as an attempt to over come the provisions of Ceilings Act, if it is proved that it was done only for avoiding the liability to surrender surplus land. However unfortunately the order of SOC has not been filed hence it can not be said that whether it was contested order or based upon compromise or mock contest.
7. The appellate court in the impugned order has held that in view of Section 38(b) of the Ceiling Act order of SOC dated 22.1.1971 will not operate as res-judicata. Section 38-B, which was inserted by U.P. Act No. 20 of 1976 with effect from 10.10.1975, is quoted below:
38-B. No finding or decision given before the enforcement of section in any proceedings or on in any issue including (any order decree or judgment) by any court, tribunal or authority in respect of any matter governed by this court shall bar retrial of the said proceedings or the issue under this Act in accordance with the provisions of this Act as amended from time to time.
(This section was inserted by U.P. Act No. 20 of 1976 w.e.f. 10.10.1975).
8. Supreme Court has interpreted this provision in D.N. Singh v. Civil Judge and Ors. (3 Judges Division Bench). The Supreme Court held that by virtue of Section 13-A and Section 38-B of the Ceiling Act it was clear that earlier orders passed by Ceiling Authorities were binding upon them however "the power under Section 38-B merely indicates that if any finding or decision was there by any ancillary forum prior to commencement of the said section in respect of matter which is governed by the Ceiling Act then such binding will not operate as res judicata in a proceedings under the Act." The Supreme Court in the said case noticed full bench authority of this court reported in Ram Charan v. State of U.P and Ors. wherein it was held that finding which was arrived at under the provisions of the Consolidation Act was not binding upon the Ceiling authorities in view Section 38-B of the Ceilings Act. The Supreme Court held that the said full bench authority had no application to the point involved in the said case. Supreme Court subsequently also construed the scope of Section 38-B in Escorts Farms v. Commissioner 2 Judges D.B. However unfortunately the earlier authority of D.N. Singh was not placed before it.
9. The appellate court placed reliance upon the aforesaid full bench authority, which is also reported in 1978 AWC 677. Even though the view of the appellate court on the interpretation of Section 38-B appears to be corrected however the said question should have been raised by the State at the time of earlier two appeals when matters were remanded i.e. decision dated 8.11.1983 annexure 1 to the writ petition and decision dated 20.1.1987 annexure 2 to the writ petition. Section 38-B had been inserted not only before first remand order but even before first order by Prescribed authority dated 6.9.1976. The State ought to have challenged the first remand order dated 8.11.1983 where in it was clearly held that plot declared by the consolidation authorities which belongs to the petitioner should be excluded from the holdings of the respondent No. 4. After the said finding of the appellate court in the remand order dated 8.11.1983, subsequently it could not be held that orders of Consolidation authorities are not binding upon the ceiling authorities. An appellate court hearing appeal against an order passed by the lower court in pursuance of earlier remand order by the same appellate court can not go beyond the earlier remand order.
10. I need not decide the question as to whether in this writ petition State authorities as respondents can question the correctness of the appellate order dated 8.11.1983 as said point has not been argued.
11. In view of the above the earlier order of the appellate court dated 8.11.1983 was binding upon prescribed authority as well as appellate authority while passing the impugned order dated 24.2.1990.
12. Accordingly writ petition is allowed. Impugned orders are set-aside and matter is remanded to the prescribed authority to strictly determine the surplus land in accordance with the order dated 8.11.1983 passed by the appellate court.