Allahabad High Court
Ram Kali Devi vs State Of U.P.Through Collector Unnao ... on 12 September, 2023
Author: Alok Mathur
Bench: Alok Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Neutral Citation No. - 2023:AHC-LKO:58767 Reserved A.F.R. Court No. - 17 Case :- WRIT - C No. - 3000014 of 1991 Petitioner :- Ram Kali Devi Respondent :- State Of U.P.Through Collector Unnao And Others. Counsel for Petitioner :- Govind Saran Nigam,Abhisht Saran,Govind Saran Nigam,Nirmal Tewari,Rahul Kumar Kashyap,V.R. Singh Counsel for Respondent :- C.S.C. Hon'ble Alok Mathur,J.
1. Heard Abhisht Saran, learned counsel for petitioner as well as learned Standing Counsel for respondents.
2. By means of the present writ petition the petitioner has challenged the order dated 16.04.1991 passed by Additional District Magistrate/prescribed Authority under the Ceiling Act whereby he has allowed the application preferred by the State for recalling of his previous order dated 16.03.1991.
3. It has been submitted by learned counsel for petitioner that present dispute was initiated on issuance of a notice under Section 10 (2) of Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960 on the petitioner.
4. The petitioner had filed her objections to the said notice and had stated that the lands in issue which are sought to be declared to be surplus under the Act of 1960 were in fact previously owned by her son, namely, Shreeprakash @ Munna. It was further stated that her son Shreeprakash had executed a will in favour of his sisters on 05.01.1978 which was duly registered on 27.12.1980 and the said property having been devolved on the legaties of the said will and the said land held after the said alienation would not be subjected to Ceiling Act 1960, and cannot be clubbed with the holding of the petitioner.
5. The objections submitted by the petitioner were duly considered by the Prescribed Authority and in this regard, an order was passed on 16.03.1991 where the version of the petitioner was accepted and the notices under Section 10(2) of the Act of 1960 were discharged.
6. A month thereafter, an application for recall of the order dated 16.03.1991 was filed by the State, stating that they were not given adequate opportunity of hearing by the Prescribed Authority and consequently in exercise of powers under Section 13 (A) of Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960, the order dated 16.03.1991 deserves to be recalled and the matter to be re-heard on merits.
7. It is the application preferred by the State which has been allowed by means of impugned order dated 16.04.1991 which has been assailed in the present writ petition.
8. Learned counsel for petitioner while assailing the said order has submitted that as per provisions contained in Section 13(A) of the Act of 1960, it only provides for rectification of any mistake apparent on the fact of record.
9. It is submitted that a perusal of the order dated 16.04.1991 would indicate that though the counsel for the State was not present but the matter was duly prosecuted by the Tehsildar who was present on the occasion and has led all the submissions on behalf of the State. He further submits that entire records were perused by the Prescribed Authority and all the evidences which were adduced were duly considered before passing of the said order. He also submits that in this regard, it cannot be said that there was any mistake or any error apparent on the face of record necessitating rectification as sought by the State.
10. He further submits that in fact the application filed by the State is under the garb of review which is not permissible under Section 13(a) of the Act of 1960.
11. Learned counsel for petitioner has also relied upon the judgment of this Court in the case of Jwala Prasad Singh Vs. District Judge passed in Writ Petition No. 965 of 1978 decided on 13.11.1978.
12. Learned Standing Counsel on the other hand has opposed the writ petition and has submitted that no adequate representation was made on behalf of the State before the Prescribed Authority and consequently there has been miscarriage of justice inasmuch as the relevant arguments on behalf of the State could not be advanced which would be within the meaning of mistake or apparent on the face of record for which the Prescribed Authority record its previous order and there is no infirmity with the same.
13. I have heard the learned counsels for the parties and perused the record.
14. The petitioner Ram Kali is the mother of Shri Prakash. Shri Prakash was initially given the notice under section 10 (2) of the Uttar Pradesh on Ceiling on Land Holding Act, 1960, and after considering his objections, 19 Bhighas 7 Biswa, 2 biswansi land out of the agricultural plot was declared surplus. The proceedings became final and the said order was incorporated in the revenue records.
15. The proceedings which are the subject matter of the present writ petition have been initiated by issuance of a notice under section under section 10 (2) read with section 29/30 of the act of 1960 issued to the petitioner Ramkali after death of her son Shri Prakash. Shreeprakash during his lifetime had executed a will on 05/01/1978. After execution of the will he had died, but the same was got registered on 27/12/1980. By means of the said will Shreeprakash has bequeathed his property in favour of his 3 sisters, namely, Krishna Trivedi, Shakuntala Dubey and Susheela Tripathi. After his death, a probate was obtained from the court of District Judge Kanpur, and necessary entries were also incorporated in the revenue records. On the basis of the report of the Sub-Divisional Officer, Unnao ,notice under section 10(2) was given to the petitioner which included the lands of Sri Prakash, which had been transferred in favour of the sisters. The petitioner filed objections stating that the lands held by late Shri Prakash have been wrongly clubbed with the petitioner's land as Shri Prakash during his lifetime had executed a will whereby his lands devolved upon his sisters after his death, and after obtaining a probate from the court of District Judge Kanpur the said land are in possession of the sisters, and the notice given under political influence and village rivalry is illegal and arbitrary and deserves to be set aside. It was further informed that the mutation has already been carried out and the lands are no longer in the name of Shreeprakash.
16. The said case was conducted by Shri Rajesh Kumar Sirvastava, the Naib Tahsildar incharge of ceiling litigation. The said Niab-Tehsildar had also filed objections to the reply submitted by the petitioner to the notice issued to her, and contested the matter before the prescribed authority. By means of order and judgment dated 16/03/1991 accepted the contention of the petitioner and held the land have been wrongly clubbed with the holding of the petitioner, as the said land had already been alienated and devolved upon the sisters of Shreeprakash under a will executive by him in their favour, which had already been probated by the District Judge Kanpur. He further recorded that such a right vested in Shreeprakash in terms of provisions contained in section 171 of the UPZA&LR Act, and accordingly discharged the notices.
17. The state moved an application on 10/04/1991 for recall of the order dated 16/03/1991 stating that the matter had been contested by the Niab-Tehsildar on behalf of the state and no Counsel could appear. Therefore they assailed the findings of the prescribed authority stating that the transfer of property by Shreeprakash was not legal and the same has been done only to evade the ceiling proceedings.
18. By means of the impugned order dated 16/04/1991 the application for the State was allowed and the order dated 16/03/1991 was recalled on the ground that the Naib-Tehsildar was not given an opportunity of hearing.
19. The main issue to be decided in the present case is as to whether in exercise of power under Section 13 A of the Act of 1960, an order which has been passed after duly considering the detail submissions of either parties on merits can be recalled without recording that there is any apparent on the face of record or the order requires any correction as prescribed under Section 13A of the Act of 1960.
21. The order dated 16.03.1991 was passed after hearing learned counsel for petitioner as well as Naib Tehsildar. The said order indicates that all the contentions have been dealt in detail and the Naib Tehsildar has effectively defended the State and raised all the objections. At no point of time during the said proceedings, it has been recorded that the matter was sought to be adjourned on the non-appearance for counsel for the State. Even in the application for recall the name of the counsel is not mentioned.
22. It has been informed that in all such matters the Naib Tehsildar who is well versed in all the ceiling laws appears and contest the matter on behalf of the State and in this case too he appeared and effectively argued the case on behalf of the State which is evident from the order dated 16.03.1991 itself.
23. A bare reading of Section 13(2) of the Act of 1960 indicates that once an order has been passed by the prescribed authority he becomes functus officio and the order passed by him disposing of all the objections filed by the tenure holder, the order becomes final subject to any order passed in appeal filed under section 13 of the Act of 1960.
24. The only manner in which any order under Section 13(A) can be reopened is only on account of any correction or mistake which is sought to be rectified within a time period of two years from the date of said order.
25. The said view hasd also been taken by this Court in case of Jwala Prasad Singh Vs. District Judge (Writ Petition No. 965 of 1978) decided on 13.11.1978 whereIin this Court has held as under:-
"3. The petitioner No. 1 Sri Jwala Prasad Singh was issued a notice under section 10(2) of the Act and he filed objections. The notice was issued some time in 1974 and the Prescribed Authority decided the objections by his order dated 24.3.1975 and the said authority held that 7 bighas and odd land in the hand of the petitioner was surplus. It seems that the petitioner was co-sharer and, therefore, proceedings were taken against all the co-sharers also in accordance with the determination made by the Prescribed Authority in the case of the petitioner by the order dated 24th March, 1975. By the order dated 31st December, 1975, the objections of the other co-sharers were also decided. Thereafter the Prescribed Authority issued a fresh notice u/s 10(2) of the Act to the petitioner and he purported to do so in view of the provisions contained in section 31(3) of the U.P. Act XX of 1976, namely, the U.P. Imposition of Ceiling on Land Holdings (Amendment) Act, 1976. Section 31 of the said Amending Act lays down transitory provision and sub-section (3) thereof is in the following words: "31(3) Where an order determining surplus land in relation to a tenure-holder has been made under the Principal Act before the tenth day of October, 1975, the Prescribed Authority (as defined in the Principal Act) may, at any time within a period of two years from the said date re-determine the surplus land in accordance with the Principal Act as amended by this Act, whether or not any appeal was filed against such order and notwithstanding any appeal (whether pending or decided) against the original order of determination of surplus land."
4. By this notice the petitioner was informed that 31 bighas and odd were surplus in his hand. However, when he filed objections the same were accepted and the notice was discharged by the Prescribed Authority by his order dated 31st January, 1977. By a subsequent order dated 14th February, 1977 the Prescribed Authority directed that the order dated 31st January, 1977, whereby the notice had been discharged should be given effect to. Thereafter the State Government moved two applications, one dated 23rd June, 1977 and the other dated 12th July, 1977, whereby a review was sought of the order dated 31st January, 1977, and the prayer was made that the said order should be reviewed and the subsequent order dated 14th February, 1977 should be countermanded. The said applications were purported to have been moved under section 13-A of the Act. True copies of the said applications are annexures '4' and '5', respectively. The Prescribed Authority allowed the said applications and in the appeal the order of the Prescribed Authority was maintained.
5. Now the petitioner has come up in the instant petition and in support thereof, I have heard Sri Sankatha Rai, learned counsel for the petitioner. The learned Standing Counsel has been heard in opposition. Counsel for the petitioner contended that section 13-A was really not attracted, inasmuch as there was no mistake apparent on the face of the record. He has further contended that the Prescribed Authority and the Appellate Court below were wrong in holding that the order dated 24th March, 1975 had become final because no appeal had been filed against the said order. Counsel has placed reliance on Section 31(3) for his contention that inasmuch as the order was passed before the tenth day of October, 1975 but after January 17, 1975, therefore, it was open to the Prescribed Authority to re-determine the surplus land in accordance with the Principal Act as amended by the said Amending Act within a period of two years from the relevant date. The learned Standing Counsel, on the other hand, has contended that there was no occasion to issue a fresh notice under section 10(2) inasmuch as the amendment in the U.P. Act XX of 1976 did not in any manner affect the original determination and, therefore, there was no occasion for taking proceeding by recourse to section 31(3) of the said Amending Act. I should like to observe here that this contention of the learned Standing Counsel is nowhere to be found in the order of the Prescribed Authority and in the judgment of the lower appellate court. The real point which weighed with them was that because there was no appeal filed against the order dated 24th March, 1975, therefore, the same had become final and no fresh notice u/s 10(2) could be issued. This is undoubtedly contrary to the requirement of section 31(3) which has been re-produced above and which clearly says that even though no appeal was filed against the first order, fresh proceedings could be initiated under the Amended Act. It has seemed to me that, therefore, the second notice under section 10(2) could not be said to be without jurisdiction. In any case, I do not think that the order dated 31.3.1977 passed by the Prescribed Authority in consequence of the second notice u/s 10(2) could be said to contain any mistake apparent on the face of the record even if there was any mistake in issuing a second notice u/s 10(2) of the Act it could not be said to be a mistake apparent on the face of the record and the same needed to be established after a long-drawn out process and by invoking in aid controversial aspects of the matter. Therefore, I accept the contention of the learned counsel for the petitioner that there was no occasion for entertaining any application under section 13-A of the Act and the subsequent order passed by the Prescribed Authority and the lower appellate court, allowing the applications of the State moved u/s 13-A should be treated to be without jurisdiction.
The writ petition is allowed and the order of the prescribed Authority and the judgment of the lower appellate court are accordingly quashed and the Prescribed Authority is directed to treat its subsequent order dated 31st January, 1977 and the following order dated 14th February, 1977 as valid and effective order and to give effect to the same. In the circumstances there will be rder as to costs."
26. Hon'ble the Supreme Court in the case of Devendra Nath Singh Vs. Civil Judge, Basti, (1999) 1 SCC 71, held as under:-
"3. Having examined the provisions of Section 13-A and Section 38-B of the Act, we are of the considered opinion that under Section 13-A, the prescribed authority has the power to reopen the matter within two years form 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 entertain fresh evidence and re-examine question as to whether the two sons, namely, Hamendra and Shailendra were major or not. The power under Section 38-B 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 their finality in the very case under the Act. In this view of the matter, we have no hesitation to come to the conclusion that the prescribed authority had no jurisdiction to reopen the question of the majority of the two sons in purported exercise of the power under Section 13-A. If the authority had no jurisdiction, question of waiver of jurisdiction does not arise. As contended by learned counsel for the respondent."
27. In the present case, just because the counsel for the State did not appear, the entire order has been sought to be recalled and in fact the application for recall further indicates that the findings recorded by the prescribed authority has already been assailed holding the said findings to be incorrect and it has been stated that the execution of will was itself fraudulent. This indicates that the intention of the State authorities was to reopen the entire matter and reheared it on merits & re-examined all the evidences.
28. The application for recall was in fact an application for review of the order of prescribed authority dated 16.03.1991 rather than an application for correction. It is undoubtedly clear that the prescribed authority does not have any power of review as the same is not prescribed in the Act of 1960 and under the garb of review the application for recall was preferred on the ground that the State counsel did not appear to contest the matter.
29. It is further noticed that in case the State was aggrieved by the order dated 16.03.1991 passed by the prescribed authority, it was always open for them to prefer an appeal under Section 13 of the Act of 1960 before the Commissioner but instead of filing an appeal the application for recall was preferred.
30. In light of the above, this Court is of the considered view that the jurisdiction exercised by the prescribed authority purportedly exercised under Section 13(A) of the Act of 1960 is not vested in him and hence the impugned order is illegal and arbitrary and is accordingly set aside.
31. With the above observations, the writ petition stands allowed.
(Alok Mathur, J.) Order Date :- 12.09.2023 Ravi/