Allahabad High Court
State Of U.P. Thru Collector Allahabad vs Haushala Prasad on 16 July, 2019
Equivalent citations: AIRONLINE 2019 ALL 2353
Author: Yashwant Varma
Bench: Yashwant Varma
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 6 Case :- WRIT - C No. - 2810 of 2004 Petitioner :- State Of U.P. Thru Collector Allahabad Respondent :- Haushala Prasad Counsel for Petitioner :- S.C. Counsel for Respondent :- Durga Prasad,D.Tiwari,M.N.Singh,S.C.,V.K.Singh Hon'ble Yashwant Varma,J.
Heard Sri Sanjay Goswami, the learned Additional Chief Standing Counsel, for the petitioner and Sri M.N. Singh who has appeared for the contesting respondent. The Court notes that an application for impleadment had been made on behalf of one Rama Shankar Singh who is stated to be the vendee in a sale deed dated 03 February 1983 executed by the respondent here. When the matter has been taken up, none has appeared to press that application. The application for impleadment is consequently rejected. The Court notes that even otherwise no prejudice as such stands caused to the applicant since as would appear from the subsequent paragraphs of this decision both the Prescribed Authority as well as the Appellate Authority have recognised the bona fides underlying the sale transaction in question and on the basis thereof had upheld the exclusion of the area comprised in the sale deed dated 03 February 1983 while computing the land held by the respondent in excess of the ceiling limit.
The State has petitioned this Court challenging the orders dated 21 December 2000 passed by the Prescribed Authority as affirmed by the Additional Commissioner in appeal in terms of its judgment dated 29 July 2002. Additionally, challenge is laid to the order of 18 October 2002 in terms of which the Additional Commissioner, purportedly exercising powers of review, has recalled his earlier judgment of 29 July 2002 and also brought to a closure all proceedings which had been initiated against the respondent tenure holder under the U.P. Imposition of Ceiling on Land Holdings Act 1960. Sri Goswami, the learned Additional Chief Standing Counsel has, however, in the course of his submissions stated that the challenge in the instant petition stands confined to the order of 18 October 2002 passed on the review petition as preferred by the respondent. It is in the above backdrop that the petition was set down for hearing. The facts in brief which may be noticed and would be relevant for disposal of the present writ petition are as follows.
The respondent tenure holder was put to notice in terms of Section 10(2) of the Act on 12 March 1993 by the State with respect to a proposed adjudication being undertaken in respect of surplus land held by him. Pursuant to that notice the respondent tenure holder submitted a reply which was ultimately considered on merits and the surplus land computed by the Prescribed Authority by an order of 21 December 2000. While passing that order the Prescribed Authority upheld the bona fides of the transaction as embodied in the sale deed of 03 February 1983 and consequently proceeded to grant benefit of Section 5(6) of the Act to the tenure holder. Dealing with the nature of the land, the Prescribed Authority referring to the revenue records of 1378 and 1399 Faslis proceeded to record that the land was irrigated and its soil was capable of bearing two crops. On the strength of these findings it proceeded to compute the land which was liable to be recognised as being held by the landholder in excess of the ceiling limit prescribed. This decision of the Prescribed Authority was assailed by the landholder as well as the State. Both the appeals were dismissed by the Additional Commissioner on 29 July 2002. The landholder however appears to have filed an application for review of this order on 02 August 2002. It is not disputed before this Court that the application was purportedly filed under Section 151 CPC. This application has been allowed by the Appellate Authority in terms of its order of 18 October 2002. Ruling on the question of whether a power to review vested in it, the Appellate Authority takes resort to Section 151 CPC to hold that a quasi-judicial authority must be recognised to have an inherent power to review and correct errors apparent on the face of the record. The Appellate Authority in terms of the order impugned has ultimately proceeded to hold that the majority of the land holding of the respondent was liable to be viewed as unirrigated and had only borne a single crop. It has, on the basis of these findings, come to hold that the proceedings initiated against the landholder were liable to be dropped. The Appellate Authority in terms of the operative directions framed has brought the proceedings initiated under the Act to a close.
Assailing this order Sri Goswami, the learned Additional Chief Standing Counsel, contends that the theory of inherent power as recognised to be available with the Appellate Authority is a view which is clearly untenable. According to Sri Goswami, the power to review must be found to be statutorily conferred expressly or by necessary implication. According to him in the absence of a statutory conferment of such power, a quasi-judicial authority cannot be recognised to have the power to review its earlier decision. According to Sri Goswami the power which was exercised by the Appellate Authority in the facts of this case also does not meet the tests as judicially recognised and which must inform the exercise of power under Order XLVII Rule 1 CPC. Sri Goswami in support of his submissions has placed reliance upon the judgment rendered by three learned Judges of the Supreme Court in Patel Narshi Thakershi Vs. Pradyumansinghji Arjunsinghji1. He has also drawn the attention of the Court to a decision rendered by a learned Judge of this Court in U.P. Steels Limited Vs. State of Uttar Pradesh2 arising out of proceedings emanating from the Act wherein it was held that no power of review can be recognised to inhere in authorities under the Act.
Countering these submissions Sri M.N. Singh, learned counsel appearing for the contesting respondent, contends that from the material which has been taken into consideration by the Appellate Authority and as encapsulated in the impugned order, it is evident that its earlier decision of 29 July 2002 suffered from errors apparent on the face of the record. According to Sri Singh the power to correct and rectify an error which is ex facie evident, must be recognised as an inherent power vesting in every judicial or quasi-judicial authority. Sri Singh learned counsel has placed reliance upon the decision rendered in Ram Autar And Others v. The State of U.P.3 to submit that the authorities under the Act were recognised to have an inherent power to rectify mistakes apparent on the face of the record. Sri Singh submits that the recordal of facts by the Appellate Authority clearly shows and establishes that the majority of the plots of the landholder were unirrigated and had produced only one crop. He submits that in light of the facts that existed on the record, the Appellate Authority was clearly justified in recalling and reviewing its earlier judgment of 29 July 2002 and bring the proceedings initiated against the landholder to a closure. It is these rival submissions, which consequently fall for determination.
At the very outset let it be noted that although learned counsel for the respondent would contend that Ram Autar is an authority for the proposition that every quasi-judicial authority has an inherent power to review, that may not be a correct reading of that decision. The learned Judge in Ram Autar has held thus: -
"15. True, when there is no specific statutory provision for reviewing an order by an authority contemplated under the Act, the authority has no power to review its order. At this place I think it proper to mention that no Court or Tribunal is debarred from exercising inherent jurisdiction apart from statutory jurisdiction to correct any error committed by itself. The aforesaid power for correcting error by the Court itself is based on the maxim that no party should suffer because of the fault of the Court or Tribunal. Taking the aforesaid view into consideration I think it proper to emphasize that every Court and Tribunal has inherent jurisdiction to rectify its mistake. The question in what circumstance the Court or Tribunal shall rectify its mistake will depend upon the nature of the mistake committed by the Court and whether that mistake cannot be termed as clerical mistake or mistake apparent on the face of the record." (emphasis supplied) As is evident from the observations made in that decision, the learned Judge essentially sought to hold that the power of rectification must be recognised to stand invested in every quasi-judicial authority. This is evident from the opening part of paragraph 15 itself where the learned Judge recognises the settled principle that the power to review must be statutorily conferred. That there is an inherent distinction between the power to "rectify" and the power of "review" is an issue, which is no longer res integra. Ram Autar can thus only be recognised as an authority for the proposition that the power to rectify must be recognised as being inherently inhering in a quasi-judicial authority. In any case and is evident from a reading of the subsequent decision of this Court in U.P. Steels Limited, it has been clearly held that in the absence of a specific provision conferring power of review upon the authorities under the Act, it cannot be recognised as an inherent power Dealing with this aspect the learned Judge in U.P. Steels Limited observed thus:-
"8. The aforesaid order passed by this Court has become final as validity of the said order was not challenged before the Supreme Court. The authorities below after the aforesaid order was passed by this Court, decided the case in the light of the observations made and findings recorded by this Court and re-determined the ceiling area of the petitioner. The petitioner also filed an application giving its choice as provided under Section 12 A of the Act. The calculation made by the authorities below were also verified and certified by the counsel of the petitioner. Therefore, after the order dated 23.10.1980, passed by the Prescribed Authority declaring 46 bighas 14 biswas 5-1/3 biswansi of land as surplus, the petitioner had no right to file an appeal. However, the appeal was filed which was also dismissed. Thereafter, the review application was also filed, which also met the same fate and was dismissed by order dated 10.2.1984. The appellate authority in its aforesaid order observed as under:
"There were no calculations in the appellate's judgment. List has been given and it had been checked by the counsel of the appellant who had conceded that it was correct.
It is urged now by him that there could be a mistake and certain plots in respect of which declaration under Section 143 had been granted, were not excluded. He had to concede that declaration was not in record in respect of some of the plots which he claimed to be covered by that declaration and that it is not traceable. His contention is that he should be allowed 234-14-15 bighas of land it is not necessary to show declaration under Section 143. That, in my opinion, is not correct and in any case review is not rehearing of appeal. If the counsel had conceded certain point and there could have been mistake, review will not be maintainable. Judgment shows no clerical or arithmetical error and if there is some mistake for which we have to go through the record again, it will not be a ground for review.
As it is, in my opinion, review is not maintainable and there is no clerical error which is apparent on the record.
The application is without any force.
9. Under the Act, there is no provision of filing a review application. Section 13A of the Act simply provides for an application for rectification of clerical mistake. In the present case, learned counsel for the petitioner conceded before the appellate authority that there was no mistake in the calculation, thus, the appellate authority was right in holding that the review was legally not maintainable." (emphasis supplied) The controversy in any case does not survive in light of the decision rendered by the Supreme Court in Patel Narshi Thakershi where in unambiguous terms it was held that the power to review could never be recognised as being an inherent power. Their Lordships held that the power to review must be conferred by law either specifically or by necessary implication. These observations as they appear in paragraph-4 of the decision are extracted herein below: -
"4. The first question that we have to consider is whether Mr. Mankodi had competence to quash the order made by the Saurashtra Government on October 22, 1956. it must be remembered that Mr. Mankodi was functioning as delegate of the State Government. The order passed by Mr. Mankodi, in law amounted to a review of the order made by Saurashtra Government. It is well settled that the power to review is not an inherent power. It must be conferred by law either specifically or by necessary implication. No provision in the Act was brought to our notice from which it could be gathered that the Government had power to review its own order. If the Government had no power to review its own order, it is obvious that its delegate could not have reviewed its order. The question whether the Government's order is correct or valid in law does not arise for consideration in these proceedings so long as that order is not set aside or declared void by a competent authority. Hence the same cannot be ignored. The Subordinate Tribunals have to carry out that order. For this reason alone the order of Mr. Mankodi was liable to be set aside." (emphasis supplied) In light of the decision of the Supreme Court which is relied upon by Sri Goswami, it is manifest that the legal principle of the power of review necessarily being found to be statutorily conferred or flowing by necessary implication from statute, is beyond the realm of doubt.
Before proceeding further and dealing with the challenge to the impugned order on merits, it would be apposite to pause and reflect briefly on the power of review as well as to spell out the clear and well understood distinction between a "merit review" and "procedural review". Review, as is well settled, is a power conferred to rectify a patent or glaring error of fact or law apparent on the face of the record. If a judgment or order has come to be rendered on an erroneous assumption, in ignorance of an essential fact or piece of evidence and its perpetuation would result in a miscarriage of justice, the Courts and quasi-judicial authorities would be bound to correct and rectify that decision or order. The mistake or error must be established to be glaring, patent, substantial and of a compelling character. The mistake must be found to be one that goes to the very root and foundation of the judgment or order sought to be reviewed.
At the same time, a petition for review is not a remedy of re-hearing or reconsideration of issues which stand finally settled by the judgment or order. Though curative, it is not intended to be a remedy for fresh consideration or a re-assessment of the case on merits. It must, by its very inherent character coupled with the need to accord finality to an adjudicatory process, be confined to the issue of whether the decision rendered suffers from an unmistakable, conspicuous or patent error. As has been repeatedly stated, the jurisdiction of review is not intended to be an occasion to substitute a view already taken. An elaborate and lucid exposition on the scope of review is found in the decision of the Supreme Court in Lily Thomas Vs. Union of India4 where it was held: -
52. The dictionary meaning of the word "review" is "the act of looking, offer something again with a view to correction or improvement". It cannot be denied that the review is the creation of a statute. This Court in Patel Narshi Thakershi v. Pradyumansinghji Arjunsinghji [(1971) 3 SCC 844 : AIR 1970 SC 1273] held that the power of review is not an inherent power. It must be conferred by law either specifically or by necessary implication. The review is also not an appeal in disguise. It cannot be denied that justice is a virtue which transcends all barriers and the rules or procedures or technicalities of law cannot stand in the way of administration of justice. Law has to bend before justice. If the Court finds that the error pointed out in the review petition was under a mistake and the earlier judgment would not have been passed but for erroneous assumption which in fact did not exist and its perpetration shall result in a miscarriage of justice nothing would preclude the Court from rectifying the error. This Court in S. Nagarajv. State of Karnataka [1993 Supp (4) SCC 595 : 1994 SCC (L&S) 320 : (1994) 26 ATC 448] held: (SCC pp. 619-20, para 19) "19. Review literally and even judicially means re-examination or reconsideration. Basic philosophy inherent in it is the universal acceptance of human fallibility. Yet in the realm of law the courts and even the statutes lean strongly in favour of finality of decision legally and properly made. Exceptions both statutorily and judicially have been carved out to correct accidental mistakes or miscarriage of justice. Even when there was no statutory provision and no rules were framed by the highest court indicating the circumstances in which it could rectify its order the courts culled out such power to avoid abuse of process or miscarriage of justice. In Raja Prithwi Chand Lal Choudhury v. Sukhraj Rai [AIR 1941 FC 1] the Court observed that even though no rules had been framed permitting the highest court to review its order yet it was available on the limited and narrow ground developed by the Privy Council and the House of Lords. The Court approved the principle laid down by the Privy Council in Rajunder Narain Rae v. Bijai Govind Singh[(1836) 1 Moo PC 117 : 2 MIA 181] that an order made by the Court was final and could not be altered:
''... nevertheless, if by misprision in embodying the judgments, errors have been introduced, these courts possess, by common law, the same power which the courts of record and statute have of rectifying the mistakes which have crept in.... The House of Lords exercises a similar power of rectifying mistakes made in drawing up its own judgments, and this Court must possess the same authority. The Lords have however gone a step further, and have corrected mistakes introduced through inadvertence in the details of judgments; or have supplied manifest defects in order to enable the decrees to be enforced, or have added explanatory matter, or have reconciled inconsistencies.' Basis for exercise of the power was stated in the same decision as under:
''It is impossible to doubt that the indulgence extended in such cases is mainly owing to the natural desire prevailing to prevent irremediable injustice being done by a court of last resort, where by some accident, without any blame, the party has not been heard and an order has been inadvertently made as if the party had been heard.' Rectification of an order thus stems from the fundamental principle that justice is above all. It is exercised to remove the error and not for disturbing finality. When the Constitution was framed the substantive power to rectify or recall the order passed by this Court was specifically provided by Article 137 of the Constitution. Our Constitution-makers who had the practical wisdom to visualise the efficacy of such provision expressly conferred the substantive power to review any judgment or order by Article 137 of the Constitution. And clause (c) of Article 145 permitted this Court to frame rules as to the conditions subject to which any judgment or order may be reviewed. In exercise of this power Order XL had been framed empowering this Court to review an order in civil proceedings on grounds analogous to Order 47 Rule 1 of the Civil Procedure Code. The expression, ''for any other sufficient reason' in the clause has been given an expanded meaning and a decree or order passed under misapprehension of true state of circumstances has been held to be sufficient ground to exercise the power. Apart from Order XL Rule 1 of the Supreme Court Rules this Court has the inherent power to make such orders as may be necessary in the interest of justice or to prevent the abuse of process of court. The Court is thus not precluded from recalling or reviewing its own order if it is satisfied that it is necessary to do so for sake of justice."
The mere fact that two views on the same subject are possible is no ground to review the earlier judgment passed by a Bench of the same strength.
53. This Court in Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi [(1980) 2 SCC 167 : 1980 SCC (Tax) 222 : AIR 1980 SC 674] considered the powers of this Court under Article 137 of the Constitution read with Order 47 Rule 1 CPC and Order XL Rule 1 of the Supreme Court Rules and held: (SCC pp. 171-72, para 8) "8. It is well settled that a party is not entitled to seek a review of a judgment delivered by this Court merely for the purpose of a rehearing and a fresh decision of the case. The normal principle is that a judgment pronounced by the Court is final, and departure from that principle is justified only when circumstances of a substantial and compelling character make it necessary to do so: Sajjan Singh v. State of Rajasthan[AIR 1965 SC 845 : (1965) 1 SCR 933, 948] , SCR at p. 948. For instance, if the attention of the Court is not drawn to a material statutory provision during the original hearing, the Court will review its judgment: Girdhari Lal Gupta v. D.H. Mehta [(1971) 3 SCC 189 : 1971 SCC (Cri) 279 : (1971) 3 SCR 748, 760] , SCR at p. 760. The Court may also reopen its judgment if a manifest wrong has been done and it is necessary to pass an order to do full and effective justice: O.N. Mohindroo v. Distt. Judge, Delhi [(1971) 3 SCC 5 : (1971) 2 SCR 11, 27] , SCR at p. 27. Power to review its judgments has been conferred on the Supreme Court by Article 137 of the Constitution, and that power is subject to the provisions of any law made by Parliament or the rules made under Article 145. In a civil proceeding, an application for review is entertained only on a ground mentioned in Order 47 Rule 1 of the Code of Civil Procedure, and in a criminal proceeding on the ground of an error apparent on the face of the record (Order XL Rule 1, Supreme Court Rules, 1966). But whatever the nature of the proceeding, it is beyond dispute that a review proceeding cannot be equated with the original hearing of the case, and the finality of the judgment delivered by the Court will not be reconsidered except ''where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility': Sow Chandra Kante v. Sk Habib [(1975) 1 SCC 674 : 1975 SCC (Tax) 200 : 1975 SCC (L&S) 184 : 1975 SCC (Cri) 305 : (1975) 3 SCR 933] ." (emphasis supplied) That then takes us to the concept of "procedural review" as judicially formulated. The power of "procedural review", as distinct from a "merit review", is the genre of review that has been judicially recognised to inhere in all quasi-judicial authorities. The power of procedural review is invoked where a judgment has been rendered ex parte, without notice or in the absence of a necessary party. It is a power inhering in all quasi-judicial authorities to recall a judgment or order that has come to be entered in the absence of parties. Explaining this concept the Supreme Court in Kapra Mazdoor Ekta Union Vs. Birla Cotton Spg. Wvg. Mills Ltd5 held as under:
"18. It was, therefore, submitted before us, relying upon Grindlays Bank Ltd. v. Central Govt. Industrial Tribunal [1980 Supp SCC 420 : 1981 SCC (L&S) 309] that even in the absence of an express power of review, the Tribunal had the power to review its order if some illegality was pointed out. The submission must be rejected as misconceived. The submission does not take notice of the difference between a procedural review and a review on merits. This Court in Grindlays Bank Ltd. v. Central Govt. Industrial Tribunal [1980 Supp SCC 420 : 1981 SCC (L&S) 309] clearly highlighted this distinction when it observed: (SCC p. 425, para 13) "Furthermore, different considerations arise on review. The expression ''review' is used in the two distinct senses, namely (1) a procedural review which is either inherent or implied in a court or Tribunal to set aside a palpably erroneous order passed under a misapprehension by it, and (2) a review on merits when the error sought to be corrected is one of law and is apparent on the face of the record. It is in the latter sense that the Court in Patel Narshi Thakershi case[(1971) 3 SCC 844 : AIR 1970 SC 1273] held that no review lies on merits unless a statute specifically provides for it. Obviously when a review is sought due to a procedural defect, the inadvertent error committed by the Tribunal must be corrected ex debito justitiae to prevent the abuse of its process, and such power inheres in every court or Tribunal."
19. Applying these principles it is apparent that where a court or quasi-judicial authority having jurisdiction to adjudicate on merit proceeds to do so, its judgment or order can be reviewed on merit only if the court or the quasi-judicial authority is vested with power of review by express provision or by necessary implication. The procedural review belongs to a different category. In such a review, the court or quasi-judicial authority having jurisdiction to adjudicate proceeds to do so, but in doing so commits (sic ascertains whether it has committed) a procedural illegality which goes to the root of the matter and invalidates the proceeding itself, and consequently the order passed therein. Cases where a decision is rendered by the court or quasi-judicial authority without notice to the opposite party or under a mistaken impression that the notice had been served upon the opposite party, or where a matter is taken up for hearing and decision on a date other than the date fixed for its hearing, are some illustrative cases in which the power of procedural review may be invoked. In such a case the party seeking review or recall of the order does not have to substantiate the ground that the order passed suffers from an error apparent on the face of the record or any other ground which may justify a review. He has to establish that the procedure followed by the court or the quasi-judicial authority suffered from such illegality that it vitiated the proceeding and invalidated the order made therein, inasmuch as the opposite party concerned was not heard for no fault of his, or that the matter was heard and decided on a date other than the one fixed for hearing of the matter which he could not attend for no fault of his. In such cases, therefore, the matter has to be reheard in accordance with law without going into the merit of the order passed. The order passed is liable to be recalled and reviewed not because it is found to be erroneous, but because it was passed in a proceeding which was itself vitiated by an error of procedure or mistake which went to the root of the matter and invalidated the entire proceeding. In Grindlays Bank Ltd. v. Central Govt. Industrial Tribunal [1980 Supp SCC 420 : 1981 SCC (L&S) 309] it was held that once it is established that the respondents were prevented from appearing at the hearing due to sufficient cause, it followed that the matter must be reheard and decided again." (emphasis supplied) It would thus be evident that a procedural review is not really concerned with the merits of the decision rendered. It is restricted to cases where an adjudication has come to be made without notice to a necessary party or where a party to the cause was prevented by sufficient cause from attending to the proceedings. Having noticed the basic principles which underlie the power of review, the Court proceeds to consider the validity of the impugned order.
It is manifest from a reading of the impugned order passed by the Appellate Authority in this case that it clearly does not fall in the genre of a procedural review. This is not a case where the order of 29 July 2002 came to be rendered without hearing the tenure holder or in violation of the principles of natural justice. The order impugned clearly embodies a "merit review" undertaken by the Appellate Authority. A merit review power must have sanction of statute specifically or by necessary implication. The Act undisputedly confers no such power on the Appellate Authority. It is thus evident that the impugned order suffers from a patent jurisdictional error.
That takes the Court to the last issue of whether the judgment of 29 July 2002 suffered from a glaring or manifest error meriting its reopening and review. At the outset the Court notes that the tenure holder does not appear to have urged or addressed any challenge to the findings that came to be recorded by the Prescribed Authority with respect to the nature of the land before the Appellate Authority. The order of 29 July 2002 carries no recital of such contentions being raised or urged. Although Sri Singh learned counsel for the respondent submits that such a ground was taken in the memo of appeal, in the considered view of this Court, that would clearly not be determinative since it was imperative for the landholder to establish that the point was in fact actually urged, raised and pressed before the Appellate Authority. As this Court reads the order of 29 July 2002, it is more than evident that the objections with respect to the nature and character of the land does not appear to have been pressed. Even the review petition does not assert that such an assertion was in fact raised but due to inadvertence has either escaped the attention of the Appellate Authority or was not dealt with.
Notwithstanding the above, the Court ventures forth to deal with the findings on merits which have been recorded by the Appellate Authority in the impugned order in terms of which it proceeds to hold that the land was liable to be treated as unirrigated and capable of producing only one crop. In order to appreciate the question which arises, it would be relevant to refer to the provisions made in Section 4A of the Act which reads thus: -
"[4A. Determination of irrigated land. - The prescribed authority shall examine the relevant Khasras for the years 1378 Fasli, 1979 Fasli and 1380 Fasli, the latest village map and such other records as it may consider necessary, and may also make local inspection where it considers necessary and thereupon if the prescribed authority is of opinion: -
firstly, (a) that, irrigation facility was available for any land in respect of any crop in any one of the aforesaid years; by
(i) any canal included in Schedule No. 1 of irrigation rates notified in Notification No. 1579-W/XXIII-62-W-1946, dated March 31, 1953, as amended from time to time; or
(ii) any lift irrigation canal; or
(iii) any State tube-well or a private irrigation work; and
(b) that at least two crops were grown in such land in any one of the aforesaid years; or secondly, that irrigation facility became available to any land by a State Irrigation Work coming into operation subsequent to the enforcement of the Uttar Pradesh Imposition of Ceiling on Land Holdings (Amendment) Act, 1972, and at least two crops were grown in such land in any agricultural year between the date of such work coming into operation and the date of issue of notice under Section 10; or thirdly, (a) that any land is situated within the effective command area of a lift irrigation canal or a State tube-well or a private irrigation work; and
(b) that the class and composition of its soil is such that it is capable of growing at least two crops in an agricultural year; then the Prescribed Authority shall determine such land to be irrigated land for the purposes of this Act."
As is evident from a reading of that provision the Prescribed Authority is enjoined to examine the Khasras for the years 1378, 1379 and 1380 Fasli along with other contemporaneous record in order to ascertain the character of the land. The provision then takes care of three independent scenarios in order to ascertain whether the land is liable to be treated as irrigated or otherwise. Firstly it deals with the class of land irrigated by a canal, lift irrigation canal or any State tube well together with an enquiry in respect of the character of the soil which must be found to be such on which at least two crops were grown. The second category of land which is considered is that which came to have access to irrigation facilities after the commencement of the 1972 Amendment to the statute and on which two crops were in fact grown in any agricultural year. The third category of irrigated land is that which is situate within the effective command area of a lift irrigation canal and the soil of which is "capable of" being utilised to grow at least two crops. The Prescribed Authority on an examination of the relevant records pertaining to 1378F had found that the land in question fell within the command area and its soil was capable of being utilised for the plantation of two crops in a year.
A careful examination of the findings recorded by the Appellate Authority, however, show that it has on an evaluation of the records for 1378 Fasli noted that a majority of the plots were unirrigated and that it was shown from the revenue record that only one crop had been sown. From a bare perusal of the findings which are returned, it is evident that the Appellate Authority has firstly not recorded any finding that the entire land holding of the respondent was unirrigated. Even if he had found that a majority of the plots were unirrigated, this would have necessarily entailed a further exercise of demarcating plots between the category of irrigated and unirrigated being undertaken. In any case the Appellate Authority does not record any finding that may dislodge the recordal of fact by the Prescribed Authority in his original order where he had held that the land did fall in the command area. The Appellate Authority has also not borne in mind that in terms of Section 4A it was incumbent upon the authorities concerned to also evaluate whether the land was in fact "capable of" being utilised for sowing two crops as distinct from whether two crops had in fact been sown. As is evident from the language employed and the highlighted part of Section 4A extracted above, land which is "capable of" bearing at least two crops is also a determinative factor of whether it should be characterized as irrigated or unirrigated. It is thus evident that the order of the Prescribed Authority as was affirmed by the Appellate Authority could not be said to be suffering from any palpable or apparent error on the face of the record which would have warranted the exercise of power of review. The Appellate Authority has clearly undertaken an exercise of a re-appreciation of the evidence which existed and sought to revise and revisit a final decision that had been made. This was clearly an exercise beyond jurisdiction and cannot be sustained in law. In light of the above, this Court is of the considered view that the order of 18 October 2002 merits being set aside.
The petition is accordingly allowed. The impugned order dated 18 October 2002 is hereby quashed. Sri M.N. Singh, learned counsel appearing for the tenure holder, in the end submitted that since proceedings had been brought to a close by virtue of the impugned order, the respondent was never dispossessed and therefore, he be permitted to invoke the provisions of Section 12 A of the Act before the State proceeds in the matter. Sri Goswami learned Additional Chief Standing Counsel states that subject to verification of the aforesaid statement, the petitioner shall, as is duty bound, proceed in the matter in accordance with law.
Order Date: - 16.7.2019 faraz