Allahabad High Court
Bhiragu Pathi Pt. Chhaju Ram Alukik ... vs State Of U.P. And Another on 12 February, 2020
Author: Pankaj Bhatia
Bench: Pankaj Bhatia
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 30 Case :- WRIT - C No. - 1890 of 2006 Petitioner :- Bhiragu Pathi Pt. Chhaju Ram Alukik Gaushala Trust And Others Respondent :- State of U.P. and Another Counsel for Petitioner :- Anurag Khanna,Nipun Singh,S.P. Gupta Counsel for Respondent :- C.S.C. Hon'ble Pankaj Bhatia,J.
Heard Sri Nipun Singh for the petitioner and Standing Counsel for the respondents.
Rejoinder affidavits filed today is taken on record.
Counsel for the petitioner Sri Nipul Singh has argued that the proceedings under the provisions of Section 10(2) of Uttar Pradesh Imposition of Ceiling on Landholdings Act, 1960 were initiated against the petitioners and were finally decided in proceedings, which went up to the Supreme Court and once again the show cause notice has been issued for proceedings under Section 10 (2). He thus argues that the second show cause notice on the same allegations and for the same reasoning is barred by the principles of res judicata. He further argues that the principles of res judicata are based upon a public policy and even if Section 11 of the C.P.C. has not been specifically applied to The Uttar Pradesh Imposition of Ceiling on Landholdings Act, 1960, resjudicata being a public policy are clearly attracted and the petitioners cannot be subjected to facing the same proceedings once again. He further submits that the principles of res judicata being a public policy is based upon the policy that the litigation should attain finality and in the present case the petitioners are being called upon to face the same proceedings, which were contested up to the Supreme Court stage and thus the proceedings are barred and are liable to be quashed. He lastly argues that in any case the the questions having already been determined in between the parties and thus in any case ''issue estoppel' is clearly applicable as also held by Apex Court in 1999 (5) SCC 590; Hope Plantations Ltd. v. Taluk Land Board, Peermade and Another.
The Standing Counsel on the other hand has argued that there is no harm in the petitioners appearing in the proceedings initiated, as only a show cause notice has been initiated and no orders have been passed and thus at this stage, no interference is required by this Court.
Facts in brief giving rise to the present petition are as follows:-
The petitioner no. 1 claims to be a public and religious charitable trust and the income of which, is utilized for religious and charitable purposes. The petitioner no. 1 trust established an Institution for looking after and maintaining cattle of cow breed and for carrying out diverse activities including making of Ayurvedic products and for research in connection thereof. It is an admitted case that the petitioner no. 1 is not registered under the U.P. Goshala Adhiniyam, 1964.
The petitioner no. 1 was initially issued a notice under Section 10 (2) of the U.P. Imposition of Ceiling on Landholdings Act, 1960 (hereinafter referred to as ''Ceiling Act') on 1.5.1975 the petitioner claims to have filed a reply to the said notice, however, vide order dated 6.9.1975, an area of 1143 Bigha, 15 Bishwa and 8 Bishwansi was declared as surplus land out of the total land holding held by petitioner no. 1. An appeal filed against the said order dated 6.9.1975 was also dismissed. As such the petitioner challenged the said appellate order by filing a Writ Petition No. 1607 of 1976 before this Court. The said writ petition was allowed by this Court on 23.11.1978 and the matter was remanded for decision afresh. It is alleged that after remand, the Appellate Court allowed the appeal vide order dated 24.7.1079 and directed the prescribed authority to issue fresh notices to the concerned person mainly on the ground that the notice issued under Section 10(2) was not a valid notice as the same had been issued in the name of a deceased person. In pursuance to the said directions of the Appellate Court dated 24.7.1979, fresh notices were issued under Section 10(2) to the petitioner no. 1 through its existing trustees, such notice has been filed as Annexure-3. The petitioner filed objections against the said notice issued in purported exercise of powers under Section 10 (2) of the Act, however, an order dated 31.5.1982 was passed against the petitioners declaring an area of 1143 Bigha, 15 Bishwa and 8 Bishwansi as surplus area.
The petitioner preferred an appeal against the said declaration of excess area. Vide order dated 31.5.1982, the Appellate Authority allowed the appeal of the petitioner holding that the petitioner is entitled to exemption under Section 6 (f) of the Ceiling Act, being a charitable trust, the said appellate order was passed on 21.12.1982 and is on record as Annexure-5.
The State preferred a writ petition challenging the order dated 21.12.1982 by means of Writ Petition No. 4484 of 1983 mainly contending that the petitioner was not entitled to exemption under Section 6 (1) (f) of the Ceiling Act and a further plea was taken in the writ petition that the petitioner no. 1 is not even entitled to benefit of Section 6 (1) (g) of the Ceiling Act. The said writ petition was dismissed vide order dated 5.4.1996 once again holding that the writ petition lacks in merit and is accordingly dismissed. The State of U.P. preferred an S.L.P. against the judgment and order dated 5.4.1996 passed in Writ Petition No. 4484 of 1983 being S.L.P. No. 754 of 2001. The same S.L.P. was also dismissed vide order dated 12.2.2001 mainly on the ground that the delay in filing the S.L.P. is exorbitant and is accordingly dismissed and consequently the S.L.P. was also dismissed.
Counsel for the petitioner Sri Nipul Singh contends that after the dismissal of the writ petition as well as the S.L.P., the appellate order dated 21.12.1982 attained finality and no further steps were taken either by filing a review or otherwise. It is further on record that during the pendency of the writ petition consolidation proceedings were initiated in the village Faridpur under the U.P. Consolidation of Holdings Act and a minor portion of the land holding the petitioner was changed. It is contended by the petitioner that after about 19 years, a notice dated 5.8.2002 was served upon the trustees of the petitioner no. 1 proposing to give the benefit of the provisions of Section 6(f) of the Act in pursuance to the Appellate Court order dated 21.12.1982, the petitioner claimed to have appeared and filed a reply, however, nothing was done thereafter. It is further claimed that on 14.11.2005, the petitioner no. 1 received an information that some notices have been issued under Section 10(2) of the Act and dates were fixed, as such the petitioner obtained a copy of the said notice dated 18.7.2005 (Annexure-1) from the Office of the prescribed authority. In the said notice dated 18.7.2005, powers vested in the prescribed authority under Section 10(2) were invoked. Alongwith the said notice a CH Form No. 3 as prescribed under Rule 7 was also issued stating that in terms of the Government Order dated 24.7.2005 and the order of the District Magistrate dated 13.5.2005 notices were being issued under Section 10(2) read with Section 29 of the Ceiling Act and the map was prepared recording that the petitioner no. 1 is a recorded owner of the property admeasuring 297.796 hectare out of which 8.110 hectare is Abadi land. It was also mentioned that in the Goshala altogether 612 cows and calfs were found and under Section 6 (1) (g) read with Rule 4 (5) for every 10 cows and calfs one hectare land are to be exempted. Thus, 60.120 hectares lands is liable to be exempted on that count, thus total exempted land to which the petitioner was entitled was worked out at 68.230 hectares and the rest is liable to be declared as excess land.
The petitioner approached this Court by filing the present writ petition challenging the show cause notice dated 18.7.2005. During the course of the proceedings, writ petition was amended and specific assertion was made that the proceedings sought to be initiated vide notice dated 18.7.2005 pertains to the same land for which the proceedings had culminated earlier. This court had called for a reply from the State and a counter affidavit was filed stating that the proceedings have been initiated on the basis of an enquiry conducted by the District Magistrate, in which it came to the knowledge of the State Authorities that out of the total funds received by the petitioner no. 1 trust, a certain portion of amount was spent for Goshala and agricultural farms and rest of the amounts were not used for religious or charitable work instead of the trustees and their family used the money and in pursuance to the said enquiry, proceedings were to be initiated against the petitioner under Section 10(2). It was specifically contended in the counter affidavit that the petitioners are not entitled to receive any benefit under Section 6(1) (f) of the Ceiling Act because the maximum income of the trust were used for different purposes contrary to objects of the trust.
A rejoinder affidavit was filed by the petitioner denying the allegations and reiterating that the petitioners were entitled to benefits under Section 6(1)(f) of the Ceiling Act and not under Section 6(1)(g) of the Act and the said issue had attained finality. During the course of the proceedings, this Court vide order dated 20th January, 2020 directed the petitioners to bring on record a copy of the statement of accounts of the trust for the period 2002 and 2005 in view of the enquiry report dated 25.8.2004 being the basis for initiation of proceedings, the said documents were filed by means of a rejoinder affidavit and the balance sheets of the petitioner no. 1-trust has been filed as Annexure-1 to the supplementary rejoinder affidavit.
The sole question, on the basis of the pleadings exchanged in between the parties, is whether fresh proceedings could have been initiated by issuing a notice under Section 10(2) of the Act on the ground that the petitioners were not entitled to the benefits of exemption under Section 6(1)(g) of the Ceiling Act to the extent of holding as indicated in the notice.
For deciding the issue, the scheme of the Act has to be seen. The U.P. Imposition of Ceiling Act, 1960 was promulgated with a view to make equitable distribution of land and for providing land to the landless agricultural labour after taking the excess land held beyond the ceiling area held by the various land holders.
Section 4 of the said Act provides for determination of the areas for the purpose of calculating the ceiling limits and the exemptions.
Section 5 provides that after the commencement of the Act, no tenure holder is entitled to hold land in excess of ceiling limits, as prescribed.
Section 6 of the said Act specifically provides the areas, which will be exempted while calculating the ceiling limit.
Section 9 of the said Act provides that after the enforcement of the Act, the prescribed authority shall have the power to call for the records for the purposes of determining the ceiling limit by issuing a general notice, the said general notice is prescribed in a CLH Form No. 1 and the replies to the said notice are to be given in the CLH Form No. 2.
Section 10 of the said Act provides for a contingency where the tenure holders fails to file any response to the general notice issued under Section 9 (CLH Form No. 1).
Section 11 specifically provides that the prescribed authority shall prepare a statement on the basis of replies given under Section 9 or in exercise of power under Section 10 in CLH Form No. 3.
Section 11 (3) specifically provides that the order passed by the prescribed authority under Section 11 and specified in CLH Form No. 3 shall be conclusive but subject to orders that may be passed by the appellate authority under Section 13 (2) of the said Act.
Section 6(1) of the Act provides for lands which are not to be taken into consideration while determining the ceiling limit and are exempt under the various heads. Section 6(1) is quoted hereinbelow:-
"[6. Exemption of certain land from the imposition of ceiling.-[(1) Notwithstanding anything contained in this Act, land falling in any of the categories mentioned below shall not be taken into consideration for the purposes of determining the ceiling area applicable to, and the surplus land of a tenure holder, namely-
(a) land used for an industrial purpose (that is to say, for purposes of manufacture, preservation, storage or processing of goods), and in respect of which a declaration under Section 143 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 subsists;
(b) land occupied by a residential house;
(c) land used as cremation ground or as a graveyard, but excluding cultivated land;
(d) land used for tea, coffee or rubber plantations, and to the extent prescribed, land required for purposes ancillary thereto and for development of such plantations;
(e) land held from before January 24, 1971, for purposes of a stud farm, to the extent prescribed;
(f) land held from before the first day of May 1959 by or under a public religious or charitable waqf, trust, endowment, or institution the income from which is wholly utilized for religious or charitable purposes, and not being a waqf, trust or endowment of which the beneficiaries wholly or partly are settlers or members of his family or his descendants;
(g) land held from before June 8, 1973, by a Goshala of a public nature registered under the Uttar Pradesh Goshala Adhiniam, 1964, to the extent prescribed];
(h) [ x x x] [Explanation.- Nothing in clause (f) of sub-section (1) shall apply in relation to a Goshala referred to in clause (g) of that sub-section];"
A bare perusal of Section 6 makes it clear that various heads are provided for giving exemption from the operation of the ceiling limit and all the specific heads are independent of each other meaning thereby that a land holder is entitled to consideration of his case under any of the headings independent of the other heads.
In the first round of proceedings initiated under the Section 10(2), the specific defence taken by the petitioner was that it is entitled to exemption of land under Section 6(1) (f), as the petitioner is a charitable trust and wholly utilized its income for religious or charitable purposes. The said Section 6(f) in fact specifically bars the benefit of exemption to any trust whose beneficiaries are wholly or partly settlers of the trust or members of the family of the trust settlers.
In the first round of proceedings in the appellate proceedings and which were later on challenged in writ it was specifically decided as under:-
"उपरोक्त परिस्थितियों में, मैं इस निष्कर्ष पर पहुँचा हूँ कि अपीलार्थी ट्रस्ट की आय का उपयोग धार्मिक तथा दोनोत्तर प्रयोजन के लिए किया जाता है तथा अपीलार्थी अधिकतम जोत सीमा अधिनियम की धारा 6 (एफ) का लाभ पाने का अधिकारी है तथा इस सम्बन्ध में नियत प्राधिकारी जानसठ ने जो निष्कर्ष निकाला है, उस समय उपरोक्त लेखपाल की साक्ष्य की विवेचना नहीं की। उपरोक्त परिस्थितियों में, मैं नियत प्राधिकारी के इस निष्कर्ष को निरस्त करता हूँ कि अपीलार्थी यह सिद्ध करने में असफल रहा है कि अपीलार्थी ट्रस्ट की पूर्ण आय का प्रयोग धार्मिक तथा दानोत्तर प्रयोजन के लिए किया जाता है जबकि उपरोक्त तथ्य स्वयं श्री हरिप्रकाश लेखपाल की साक्ष्य, साक्षी प्रत्युत्तरदाता के कथन से ही सिद्ध हो जाती है। उपरोक्त विवेचना के बाद मैं इस निष्कर्ष पर पहुँचा हूँ कि अपीलार्थी अधिकतम जोत सीमा अधिनियम की धारा 6 एफ का लाभ पाने का अधिकारी है। "
Thus, the petitioners were granted the benefit of exemption of land under Section 6(1) (f) and at no point of time, the petitioners ever claimed or were granted the benefits of the exemption under Section 6(1) (g) of the said Act. There is no dispute that the said order had attained finality as is also clear from the dismissal of the writ petition as well as the S.L.P. preferred against the said decision in the writ petition. Once the issue pertaining to entitlement of the petitioner under Section 6(1) (f) was finalized, no proceedings could have been issued for initiating proceedings on the ground that the petitioners were not entitled to the benefit of the exemption contained in Section 6(1) (g) of the Act whereas in the present case, a show cause notice was issued under Section 10(2) vide notice dated 18.7.2005 on the basis of CLH Form No. 3 prepared by the District Magistrate, based upon a report which is filed and marked as Annexure No. CA-1 and CA-2, the said CLH Form No. 3 is on record and is dated 15.6.2005.
Thus on the basis of documents on record and the pleadings exchanged, it is clear that in the first round of proceedings, a statement was prepared under CLH Form No. 3 and notices were issued under Section 10(2) of the Act, which culminated ultimately into passing of the appellate order dated 31.5.1982. The relevant extract whereof has already been quoted hereinabove.
In the scheme of the Act, it is clear that the prescribed authority is empowered to adjudicate the ceiling limit in exercise of powers vested in the said prescribed authority under Section 11, which were done and were subjected to appeal, which was decided in terms of the powers conferred under Section 13(2) of the Act and clearly attained finality. The specific issue whether the petitioner was entitled to the benefit of Section 6(1)(f) was duly considered and decided by the Appellate Authority. It is also relevant to state that while challenging the order passed by the Appellate Authority in Writ Petition No. 4484 of 1983, it was specifically pleaded in para xi, which is as under:-
"(xi) That the view taken by the appellate court is erroneous and suffers from manifest error of law. The opposite party no. 1 is not entitled for exemption under section 6(f) of the Act."
It was specifically pleaded in para xvii, which is as under:-
"(xvii) That any exemption of land held by the Gaushala of a public nature registered under the U.P. Gaushala Adhiniyam 1964 is provided under section 6(f) of the Act read with Rule 5 framed under the Act."
In the grounds taken in the writ petition while challenging the appellate order dated 21.12.1982, specific ground no. 4 was taken, which is being quoted as under:-
"(4) Because the opposite party no. 1 is not entitled exemption of land under Section 6(g) of the Act as the Gaushala is not registered under the U.P. Gaushala Adhiniyam 1959."
The said argument raised in the writ petition on the basis of the grounds as pleaded in the writ petition did not find favour by this Court and the writ petition was dismissed vide order dated 5.4.1996, against which the S.L.P. was also dismissed. It is thus clear that an issue was specifically raised and adjudicated the same cannot be re-agitated by initiating fresh proceedings as the same would be contrary to the principles of res-judicata.
As recorded above, the proceedings initiated are quasi-judicial in nature and the appellate order as well as the order passed under Section 11 and 12 are arrived at after considering the entire facts and evidences and thus it has all the trapping of an adjudication. The decision given by the adjudicating authority as well as the appellate authority are final subject to of course, the jurisdiction of this Court in exercise of power under Article 226, the specific issue having been decided in between the parties amounts to ''issue estoppel' and cannot be re-agitated afresh on the same grounds.
The Hon'ble Apex Court in the case of 1999 (5) SCC 590; Hope Plantations Ltd. v. Taluk Land Board, Peermade and Another decided the matters arising out of Kerala Land Reforms Act and while considering the powers of Taluk Land Board considered the entire gamut of cases and held as under:-
"26. It is settled law that the principles of estoppel and res judicata are based on public policy and justice. Doctrine of res judicata is often treated as a branch of the law of estoppel though these two doctrines differ in some essential particulars. Rule of res judicata prevents the parties to a judicial determination from litigating the same question over again even though the determination may even be demonstratedly wrong. When the proceedings have attained finality, parties are bound by the judgment and are estopped from questioning it. They cannot litigate again on the same cause of action nor can they litigate any issue which was necessary for decision in the earlier litigation. These two aspects are "cause of action estoppel" and "issue estoppel". These two terms are of common law origin. Again, once an issue has been finally determined, parties cannot subsequently in the same suit advance arguments or adduce further evidence directed to showing that the issue was wrongly determined. Their only remedy is to approach the higher forum if available. The determination of the issue between the parties gives rise to, as noted above, an issue estoppel. It operates in any subsequent proceedings in the same suit in which the issue had been determined. It also operates in subsequent suits between the same parties in which the same issue arises. Section 11 of the Code of Civil Procedure contains provisions of res judicata but these are not exhaustive of the general doctrine of res judicata. Legal principles of estoppel and res judicate are equally applicable in proceedings before administrative authorities as they are based on public policy and justice.
31. Law on res judicata and estoppel is well understood in India and there are ample authoritative pronouncements by various courts on these subjects. As noted above, the plea of res judicata, though technical, is based on public policy in order to put an end to litigation. It is, however, different if an issue which had been decided in an earlier litigation again arises for determination between the same parties in a suit based on a fresh cause of action or where there is continuous cause of action. The parties then may not be bound by the determination made earlier if in the meanwhile, law has changed or has been interpreted differently by a higher forum. But that situation does not exist here. Principles of constructive res judicata apply with full force. It is subsequent stage of the same proceedings. If we refer to Order XLVII of the Code (Explanation to Rule 1) review is not permissible on the ground "that the decision on a question of law on which the judgment of the court is based has been reversed or modified by the subsequent decision of a superior court in any other case, shall not be a ground for the review of such judgment".
The said judgment of the Apex Court clearly lays down that once an "issue estoppel" has attained finality, the same cannot be re-agitated by exercising the statutory powers vested in the authorities. I have already held that the orders passed under Sections 11, 12 and 13 of the Act are quasi-judicial in nature and decide the issues agitated before the said authority, merely because Section 11 of the C.P.C. has not been made applicable to the proceedings before the prescribed authority and the appellate authority, it cannot be argued by the State that the principles of res judicata would not apply and the State would be at liberty to keep on agitating the issues time and again, the said argument cannot be accepted for the simple reasoning that the principles of res judicata are based upon public policy to put an end to the litigation.
In the present case, the fresh proceedings have been initiated on the basis of CLH Form No. 3 treating the petitioner no. 1 trust as a Goshala, whereas it is nobody's cases and had never been anybody's case that the petitioner no. 1 is a trust registered under the Goshala Adhiniam and this point agitated earlier by the State Government was not accepted by the High Court. Thus, in my view the show cause notice under Section 10(2) based upon the CLH Form No. 3 dated 15.6.2005 is clearly barred by res judicata and "cause of action estoppel" as well as "issue estoppel" having been finally determined inter-se between the parties that too after a gap of 19 years. It is, accordingly, held that the subsequent show cause notice dated 14.11.2005 is barred by the principles of res judicata and is consequently quashed.
The writ petition is allowed for all the reasons recorded above.
Order Date :- 12.2.2020 SR