Allahabad High Court
Swami Prasad vs A.D.J. And Ors. on 5 January, 2006
Equivalent citations: 2006(2)AWC1788
Author: S.K. Singh
Bench: S.K. Singh
JUDGMENT S.K. Singh, J.
1. By means of this writ petition, challenge is to the judgment of appellate authority and that of the prescribed authority dated 14.10.1982 and 11,6.11981 (Annexures-3 and 2) respectively.
2. Proceedings are under Section 10(2) of U.P. Imposition of Ceiling on Land Holdings Act, 1961 (hereinafter referred to as the Act). Pursuant to the notice under Section 10 (2) of the Act, objection came from the side of petitioner challenging correctness of the statement as appeared in the notice. After the objection and evidence, prescribed authority by its order dated 23.6.1976 declared an area of 8.23 acres of land as surplus, upon which the petitioner filed appeal in which by the judgment of the appellate authority dated 25.7.1977, surplus area was reduced and an area of 4.37 acres was declared as surplus. The petitioner came to this Court by filing Writ Petition No. 3564 of 1977 which was allowed and the matter was remanded by order of this Court dated 12.1.1979 for a fresh decision by appellate court. After the remand, appellate court by its judgment dated 14.7.1980 declared an area of 3.71 acres of land as surplus and an option was given to the petitioner to give his choice. Instead of giving choice, petitioner appears to have moved application before the prescribed authority purported to be under Section 13A of the Act with the prayer that declaration of land as surplus be reviewed and recalled as there has been some reduction in the consolidation operation. The prescribed authority rejected petitioner's application by order dated 11.6.1981 and thereafter, appeal filed by petitioner also failed as the appeal was dismissed by appellate authority by its order dated 14.10.1982 and thus against both judgments, this writ petition is before this Court.
3. The only submission which has been advanced by learned Counsel during course of argument is that the prescribed authority in rejecting petitioner's application for re-considering the declaration of surplus land on the ground that it will amount to review of earlier order, has committed an error as according to the argument, Section 13A of the Act gives wide powers to the prescribed authority for rectification of any kind of mistake and thus application of petitioner was liable to be dealt on merits. In support of the aforesaid submission, reliance has been placed on the decision given in the case of Ompal Singh 1996 (2) AWC 2.103 (Summary of Cases).
4. In response to the aforesaid, learned State counsel submits that in view of judgment of appellate authority dated 14.7.1980 the only option left with the petitioner was to give his choice and in the event, he was aggrieved with the declaration of land as surplus, his remedy was to file writ petition before this Court and to get required relief and therefore, if prescribed authority and appellate authority have rejected petitioner's application, then no exception can be taken to it.
5. In view of aforesaid, this Court has examined the matter.
6. There is no dispute about the fact that declaration of the land having travelled up to this Court at first inning became final, in view of judgment of appellate authority dated 14.7.1980 which was given by him pursuant to the remand from this Court as directed in the Writ Petition No. 3564 of 1977. There is also no dispute about the fact that the petitioner did not challenge the judgment of appellate authority dated 14.7.1980 either before appellate court by filing review petition or before this Court by filing writ petition. There is also no dispute about the fact that by judgment of appellate authority dated 14.7.1980, an area of 3.71 acres of land was declared as surplus. In view of aforesaid, there cannot be any quarrel to the fact that in due course from stage to stage, land so declared as surplus was reduced and it has come down from 8.23 to 3.71 acres now.
7. Reliance on the decision as given in the case of Ompal Singh (supra) on having been read by the Court is found to be of no help to the petitioner. In that case, it was found that plots which were declared finally as surplus were found that they do not belong to the tenure holder and therefore that mistake was permitted to be rectified by reopening the matter, in view of Section 13A of the Act and it has been further held that even if no such provision could have been there, that could have been corrected under implied powers of the Court. Here is the case where petitioner's land has been finally declared as surplus to the extent of 3.71 acres by the judgment of appellate authority dated 14.7.1980 and it is not a case that the petitioner is not left with the land with him for being parted towards the final declaration of the land as surplus. The option was given to the petitioner for giving the land which he wants to part for implementation of declaration of land as surplus. If the contention of petitioner that in spite of judgment of appellate authority declaring the land as surplus, the prescribed authority is to be given power to reopen the matter on merits for varying extent of land as surplus, is accepted to be correct, then it will be against judicial discipline and thus the decision on which reliance has been placed has no application to the facts of present case.
8. Section 13A of the Act reads as under:
13A. Re-determination of surplus land in certain cases.--(1) The prescribed authority may at any time, within a period of two years from the date of notification under Sub-section (4) of Section 14, rectify any mistake apparent on the face of record:
Provided that no such rectification which has the effect of increasing the surplus land shall be made, unless the prescribed authority has given notice to the tenure-holder of its intention to do so and has given him a reasonable opportunity of being heard.
9. Thus prescribed authority cannot be permitted to go into merits and into validity of the order passed by appellate authority in respect to the extent of land which was declared as surplus. The extent of land which was declared as surplus by judgment of appellate authority could have been reviewed/varied either by appellate authority himself or by this Court being higher forum but in no case by the prescribed authority. The contention of petitioner can only be stretched to a case where there can be error apparent on record or such kind of error which is not to reopen declaration of land as surplus at the level of appellate authority or further higher forum. As the appellate authority has already reduced declaration of land as surplus which was made from 8.23 acres to 3.71 acres, if on merit for any reason, as argued, the judgment was faulty and land was not to be declared as surplus, remedy of petitioner if any, was to file application before the appellate authority or he would have challenged the order of appellate authority before this Court by filing writ petition as it was earlier clone by him and thus, this Court is of the considered view that rejection of petitioner's application for review by both courts which was moved in the garb of moving application under Section 13A of the Act is legally sound. The scope of correction as permitted to the prescribed authority under referred provision cannot be extended to the extent to sit over the Judgment of appellate authority and if it can be so then it can be further stretched to the confirmed order of appellate authority even from this Court which if is permitted, then that may lead to a very unhealthy situation. If there is some apparent error or there is such error which can be corrected in the forum of review, in a final judgment given by a court on merits, then it has to be reviewed/ corrected by that very court or in the superior forum but in no case it can be in a reverse gear. Interference and variance by a lower court in a final judgment given on merits by a higher court, in law, cannot be corrected.
10. For the reasons recorded above, this Court is not satisfied that the courts below in rejecting petitioner's application have committed any error calling for any interference in exercise of jurisdiction under Article 226 of the Constitution.
11. Writ petition accordingly fails and is dismissed.